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MISSISSIPPI 
LAW    JOURNAL 


ARTICLES 

REPRESENTING  THE  UNREPRESENTED:  A  DECENNIAL 
REPORT   OF  PUBLIOINTEREST   LITIGATION   IN 
MISSISSIPPI 

Francis  B.  Stevens  and  John  L.  Maxey,  II 

COUNTY  REDISTRICTING  IN  MISSISSIPPI:  CASE  STUDIES 
IN  RACIAL  GERRYMANDERING 

Frank  R.  Parker 

COMMENTS 

INSTALLMENT  SALES  OF  REAL  ESTATE  UNDER  THE 
INTERNAL  REVENUE  CODE 

ASSUMPTION  OF  RISK  IN  MISSISSIPPI  -  TIME  FOR  A 
CHANGE? 

THE  MISSISSIPPI  IMPLIED  CONSENT   4CT: 
ADMINISTRATIVE  AND  CRIMINAL  PROCEDURES 

THE  USE  OF  PRIOR  CONVICTIONS  FOR  IMPEACHMENT 
IN  MISSISSIPPI 

CONSTITUTIONAL  LIMITATIONS   OF  PRISONERS' 
RIGHT  TO  MEDICAL  TREATMENT 


VOLUME  44 


JUNE  1973 


NUMBER  3 


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Mississippi  Law  Journal 

JOURNAL  of  the  MISSISSIPPI  STATE  BAR  and 
the  UNIVERSITY  of  MISSISSIPPI  SCHOOL  OF  LAW 

VOLUME  44  JUNE  1973  NUMBER  3 

Copyright  ©  1973,  Mississippi  Law  Journal 

CONTENTS 

ARTICLES 

Representing  the  Unrepresented:   A  Decennial  Report  on 
Public-Interest  Litigation  in  Mississippi 
Francis  B.  Stevens  and  John  L.  Maxey,  II  333 

County  Redistricting  in  Mississippi:  Case  Studies  in  Racial 

Gerrymandering  Frank  R.  Parker  391 

COMMENTS 

Installment   Sales   of   Real   Estate   Under   the   Internal 

Revenue  Code  425 

Assumption  of  Risk  in  Mississippi— Time  for  a  Change?  452 

The  Mississippi   Implied  Consent  Act:    Administrative   and 

Criminal  Procedures  480 

The  Use  of  Prior  Convictions  for  Impeachment  in  Mis- 
sissippi    509 

Constitutional  Limitations  of  Prisoners'  Right  to  Medical 
Treatment 525 

RECENT  DECISIONS 

Constitutional  Law— Administrative   Hearing— Dismissed 
Teaching  Assistant  Must  Show  Actual  Bias  to  Support 
Alleged  Denial  of  Due  Process  (Duke  v.  North  Texas 
State  University,  5th  Cir.  1972)  537 

Constitutional    Law— Civil    Commitment    Proceedings— Due 

Process  Required  (Lessard  v.  Schmidt,  E.D.  Wis.  1972)  544 

Constitutional  Law— Corporal  Punishment— School  Policy 
Permitting  Corporal  Punishment  Without  Parental 
Consent  Is  Not  Unconstitutional  (Ware  v.  Estes,  5th  Cir. 
1972)    550 

Constitutional  Law— Default  Imprisonment  Does  Not  Vio- 
late the  Equal  Protection  Clause  of  the  14th  Amend- 
ment (McKinney  v.  State,  Miss.  1972)  556 


Corporate  Taxation— Subchapter  S— Recharacterized  Equity 
Will  Not  Necessarily  Constitute  a  Second  Class  of 
Stock  (Amory  Cotton  Oil  Co.  v.  United  States,  5  th  Cir. 
1972)    560 

Criminal  Law— Bail— Capital  Offense  Exception  to  Consti- 
tutional Bail  Guarantee  Unaffected  by  Abolition  of 
Death  Penalty    (Hudson  v.  McAdory,  Miss.  1972) 565 

Torts— Domestic  Relations— Wife  Has  Independent  Right 
to  Recover  Parental  Damages  in  a  Child  Injury  Suit 
(Wright  v.  Standard  Oil  Co.,  5th  Cir.  1972)  574 


The  MISSISSIPPI  LAW  JOURNAL  is  published  by  University  of  Mississippi 
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by  the  Columbia,  Harvard,  and  University  of  Pennsylvania  Law  Reviews  and 
the  Yale  Law  Journal. 

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Reviews. 

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Mississippi  Law  Journal 

JOURNAL  of  the  MISSISSIPPI  STATE  BAR  and 
the  UNIVERSITY  of  MISSISSIPPI  SCHOOL  of  LAW 


VOLUME  44 


JUNE  1973 


NUMBER  3 


MEMBERS  OF  THE  LAW  JOURNAL-LAW  SCHOOL 
LIAISON  COMMITTEE 

LOWELL  E.  GRISHAM,  Chairman 
Oxford 


JAMES  HUGH  RAY,  Vice-Chairman 

Tupelo 
JOEL  BLASS 

Gulfport 
HUGH  N.  CLAYTON 

New  Albany 
ROBERT  W.  ELLIOTT 

Ripley 


WILL  A.  HICKMAN 

Oxford 
LESTER  F.  SUMNERS 

New  Albany 
JOEL   P.   WALKER,   JR. 

Hernando 


MISSISSIPPI  STATE  BAR 
1972-73 


OFFICERS 

TALLY  D.  RIDDELL  of  Quitman President 

JOE  H.  DANIEL  of  Jackson President-Elect 

JOSEPH  R.  MEADOWS  of  Gulfport Second  Vice-President 

GEORGE  VAN  ZANT  of  Jackson Executive  Director  and 

Secretary-Treasurer 

COMMISSIONERS 


James  H.  Ray Tupelo 

Norman  Breland Gulfport 

Gerald  A.  Gafford Oxford 

P.  J.  Townsend,  Jr Drew 

John  E.  Shaw Kosciusko 

James  E.  Wilkerson, 

Jr. Woodville 

Jerome  B.  Steen Jackson 

George   Monroe Newton 

Wren  C.  Way Vicksburg 


Elzy  J.  Smith  _     Clarksdale 

Marie  P.  Kepper Hattiesburg 

Aleita  M.  Sullivan.    Mendenhall 
R.  Pearce  Phillips      Brookhaven 

Sebe  Dale Columbia 

Thomas  J.  Tubr  West  Point 

George  P.  Cossar,  Jr.     Charleston 

Leonard  Melvin,  Jr. Laurel 

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Mississippi  Law  Journal 

JOURNAL  of  the  MISSISSIPPI  STATE  BAR  and 
the  UNIVERSITY  of  MISSISSIPPI  SCHOOL  of  LAW 


VOLUME  44 


JUNE  1973 


NUMBER  3 


EDITORIAL  BOARD 

ROSS  F.  BASS,  JR. 

Editor-in-Chief 

LUTHER  S.  OTT 

Assistant  Editor 


STEPHEN  L.  THOMAS 
DAVID  W.  MOCKBEE 
Article  Editors 

JOHN  P.  PRICE 

ROBERT  T.  GORDON,  JR. 

Research  Editors 

JOHNNIE  M.  HALEY 

Index  and  Review  Editor 


JAMES  E.  BLACKBURN,  JR. 

Business  Manager 

GEORGE  R.  FAIR 
E.  GLENN  KOURY 
WENDELL  H.  TRAPP 

Note-Comment  Editors 

LEO  J.  STEVENSON 

Special  Projects 


GEORGE  C.  COCHRAN 

Faculty  Advisor 


ASSOCIATE  EDITORS 

Bob  Hammond  Lester  F.  Smith 

Robert  E.  Jones  David  L.  Wilder 

Walker  W.  (Bill)  Jones 


Clayton  J.  M.  Adkinson 
David  H.  Baker 
Kenneth  D.  Barfield 
John  W.  Beam,  Jr. 
Joel  W.  Bunkley,  III 
Marlane  E.  Chill 
Claude  F.  Clayton,  Jr. 
Julie  Ann  Epps 
John  P.  Henson 
L.  C.  James 
Jon  A.  Jennings 
John  H.  Kettlekamp 
Nick  Leonard 
George  R.  Lyles 


Melvin  H.  McFatter 
David  L.  Reynolds 
William  H.  Shaheen 
William  L.  Shappley,  Jr. 
William  Dean  Stark 
Thomas  W.  Tardy,  III 
Patrick  Taylor 
Randall  D.  Waks 
Robert  E.  Warren 
Robert  H.  Walker 
Ronald  Reid  Welch 
William  B.  Wicker 
William  L.  Youngblood 
Arnold  H.  Zudick 


The  JOURNAL  seeks  to  print  matter  of  merit  and  interest;  being  desirous  of  offering 
freedom  to  contributors,  it  assumes  no  responsibility  for  the  views  expressed  herein. 


NEXT  ISSUE: 

125TH  ANNIVERSARY 
COMMEMORATIVE  ISSUE 

The  year  1973  marks  the  125th  anniversary  of  the  founding 
of  the  University  of  Mississippi.  Over  the  years,  the  University 
and  her  sons  and  daughters  have  compiled  a  proud  record  of 
significant  contribution  to  Mississippi  and  the  Nation.  In  ap- 
preciation of  this  legacy,  we  are  dedicating  the  September  issue 
(Volume  44,  Number  4)  of  the  MISSISSIPPI  LAW  JOUR- 
NAL to  the  University  and  her  outstanding  graduates.  This 
special  commemorative  issue  will  be  composed  exclusively  of 
articles  authored  by  University  of  Mississippi  School  of  Law 
graduates  who  are  esteemed  members  of  the  teaching  pro- 
fession. These  authors  and  their  articles  include: 

MESNE  PROCESS  IN  THE  EARLY  AMERICAN 

COLONIES Professor  Nathan  Levy,  Jr. 

University  of  Connecticut  School  of  Law 

THE  LAW  AND  ETHICS  OF 

ORGAN  TRANSPLANTS Professor  Jerome  F.  Leavell 

William  &  Mary  College 
Marshall-Wythe  School  of  Law 

MOTIVE  OR  PURPOSE  AND 

ACTS  OF  CONGRESS Professor  Hector  Currie 

Louisiana  State  University  School  of  Law 

PSYCHOLOGICAL  FUNCTIONS  IN  THE  TEACHING 

OF  CRIMINAL  LAW Professor  Samuel  M.  Davis 

University  of  Georgia  School  of  Law 

RESTATEMENT   (SECOND)   AND  THE  LAW  OF 

CONDITIONS  IN  CONTRACTS  Professor  Robert  Childres 

Northwestern  University  School  of  Law 

TORT  LIABILITY  IN  OIL  AND 

GAS  OPERATIONS Professor  Arthur  B.  Custy 

University  of  South  Carolina  School  of  Law 


REPRESENTING  THE  UNREPRESENTED:  A  DECENNIAL 

REPORT  ON  PUBLIC-INTEREST  LITIGATION  IN 

MISSISSIPPI 

Francis  B.  Stevens*  and  John  L.  Maxey,  II** 

Introduction 

On  September  13,  1972,  a  federal  district  court  entered  its  first  order 
in  a  class  action  seeking  sweeping  reforms  at  the  Mississippi  State 
Penitentiary  at  Parchman.1  The  court's  findings  of  fact  and  conclu- 
sions of  law  signaled  the  beginning  of  the  end  for  a  variety  of  de- 
humanizing and  unconstitutional  practices  to  which  the  inmates  have 
been  subjected  in  years  past:  racial  discrimination;  cruel  and  unusual 
punishment;  living  quarters  unfit  for  human  habitation;  an  exploitive 
trusty  system;  denial  of  proper  care,  medical  treatment  and  feeding; 
denial  of  due  process  in  the  administration  of  punishment;  arbitrary 
censorship  of  mail;  and  denial  of  access  to  courts,  public  officials,  and 
attorneys  of  record. 

On  January  28,  1971,  the  Fifth  Circuit  Court  of  Appeals  ordered 
the  Town  of  Shaw  to  submit  a  plan  for  the  district  court's  approval 
outlining  how  it  proposed  to  remedy  the  results  of  a  long  history  of 
racial  discrimination  in  the  distribution  of  its  municipal  services:  street 
paving;  street  lights;  sanitary  sewers;  surface  water  drainage  facilities; 
water  mains;  tire  hydrants;  and  traffic  control  devices.2 

The  deplorable  conditions  at  Parchman  are  not  of  recent  origin. 
The  same  is  true  of  the  municipal  services  and  facilities  in  Shaw.  The 
disparity  was  no  greater  when  the  case  was  presented  to  the  court  than 
it  had  been  over  the  years.  Why  then  do  the  State  of  Mississippi  and 
the  elected  officials  of  Shaw  suddenly  find  themselves  under  court 
order  to  implement  drastic  reforms?  The  answer  is  simple.  The  inmates 
at  Parchman  and  the  black  citizens  of  Shaw  finally  secured  legal  rep- 

*A.B.  1942,  J.D.  1951,  University  of  Mississippi.  Acting  director,  North  Mississippi 
Rural   Legal   Services. 

**A.B.  1965,  J.D.  1968,  University  of  Mississippi.  Director,  Community  Legal 
Services  of  Mississippi,  Inc.  The  authors  acknowledge  with  thanks  the  research  as- 
sistance of  Kirk  Leswing,  Tom  Ginger,  and  Ron  Welch  in  the  preparation  of  this 
article. 

iGates  v.  Collier,  349  F.  Supp.  881    (N.D.  Miss.  1972)  . 

2 Hawkins  v.  Town  of  Shaw,  437  F.2d  1286  (5th  Cir.  1971) ,  affd  en  banc,  461 
F.2d   1171    (5th   Cir.    1972). 


334  MISSISSIPPI  LAW  IOURNAL  [vol.  44 

resentation.  They  finally  got  lawyers  who  were  ready,  willing,  and  able 
to  spend  several  years  and  thousands  of  dollars  to  conduct  the  much 
needed  litigation.  The  penitentiary  will  never  be  the  same  again,  nor 
will  Shaw,  nor  will  the  State  of  Mississippi. 

Both  suits  effectively  illustrate  the  work  of  public  interest  lawyers 
in  Mississippi.  Similar  changes  have  been  wrought  by  litigation  in 
other  fields:  first  amendment  rights  have  been  established  and  en- 
forced; schools  have  been  desegregated;  voting  rights  have  been  secured; 
welfare  rights  have  been  delineated;  employment  discrimination  has 
been  challenged;  police  brutality  and  racial  discrimination  in  jury 
selection  have  been  challenged;  and  the  Mississippi  Highway  Patrol 
has  been  desegregated. 

The  changes  that  lawyers  and  judges  are  making  in  Mississippi 
are  a  microcosm  of  those  which  are  occuring  in  the  nation  as  a  whole. 
The  practice  of  law  is  facing  the  challenge  of  a  new  dimension  of 
professional  responsibility. 

I.     The  Lack  of  Available  Counsel 

The  significance  of  this  phenomenon  is  readily  apparent:  groups 
which  were  without  legal  counsel  are  now  being  represented,  thus 
remedying,  at  least  in  part,  a  fatal  defect  in  our  system  of  justice. 
The  nature  of  our  judicial  system  is  such  that  both  sides  must  be  rep- 
resented if  the  system  is  to  work  properly.  Even  detractors  of  litigation 
as  a  means  of  effecting  social  change  agree  on  the  nature  of  the  prob- 
lem. One  such  critic,  Geoffrey  C.  Hazard,  Jr.,  has  described  the  problem 
as  follows: 

There  can  be  little  question  that  the  procedure  of  courts  and 
many  administrative  tribunals  does  work  unfairly  on  anyone 
who  is  unable  either  effectively  to  assert  legal  rights  on  his  own 
behalf  or  to  employ  a  lawyer  for  that  purpose.  The  procedure 
of  most  all  courts  and  of  many  agencies  is  based  upon  the  ad- 
versary system.  In  the  adversary  system,  the  parties  have  the 
opportunity  and  responsibility  for  developing  and  presenting 
the  relevent  facts  and  legal  contentions,  while  the  adjudicator 
is  supposed  to  be  an  essentially  passive  being.  If  the  parties  lack 
capacity  to  exercise  this  opportunity  in  an  effective  way,  their 
claims  cannot  be  presented  in  the  way  contemplated  by  the  sys- 
tem. Yet,  even  where  it  is  evident  that  the  parties  lack  capacity 
to  do  this  —  as  is  typically  true  of  the  poor  —  the  adversary 
structure  is  adhered  to,  and  ineffective  parties  are  allowed  to 
suffer  their  fate.   The  result  is  a  conflict  between  the  system's 


1973]  REPRESENTING  THE  UNREPRESENTED  335 

pretension  and  its  fulfillment,  which  may  be  taken  as  one  work- 
ing definition  of  procedural  injustice.3 

When  the  people  who  are  unrepresented  constitute  large  segments 
of  our  society,  the  "conflict  between  the  system's  pretention  and  its 
fulfillment"   is  multiplied  many   times   over. 

The  bar  has  always  recognized  its  obligation  to  serve  the  public. 
Our  canons  of  ethics  are  based  on  the  premise  that  the  interests  of  the 
public  are  paramount.  If  the  name  of  our  new  Code  of  Professional 
Responsibility  implies  it,  the  preamble  to  the  Code  states  it  clearly: 

The  continued  existence  of  a  free  and  democratic  society  de- 
pends upon  recognition  of  the  concept  that  justice  is  based 
upon  the  rule  of  law  grounded  in  respect  for  the  dignity  of  the 
individual  and  his  capacity  through  reason  for  enlightened 
self-government.  Law  so  grounded  makes  justice  possible,  for 
only  through  such  law  does  the  dignity  of  the  individual  attain 
respect  and  protection.  Without  it,  individual  rights  become 
subject  to  unrestrained  power,  respect  for  law  is  destroyed, 
and  rational  self-government  is  impossible.4 

This  article  will  deal  with  the  groups  of  people5  in  Mississippi 
whose  individual  rights  have  for  years  been  "subject  to  unrestrained 
power"  and  with  the  lawyers  who  have  worked  to  do  something  about  it. 
Although  their  representation  has  been  of  minority  groups,6  the  work 
has  actually  inured  to  the  benefit  of  the  public  as  a  whole.  That  is, 
by  affording  representation  to  those  who  have  previously  gone  unrep- 
resented, the  public-interest  lawyers  are  restoring  respect  for  the  law 
and  are  thereby  making  "rational  self  government"  possible. 

The  phrase  "in  the  public  interest"  is  a  nebulous  one.7  The 
difficulty  in  definition  comes  at  the  point  of  determining  what  is  or 

3American  Bar  Foundation,  Social  Justice  Through  Civil  Justice  (Series  on 
Legal  Services  for  the  Poor  1964)  [hereinafter  cited  as  Social  Justice].  In  one  sense 
this  article  is  a  response  to  Mr.  Hazard's  monograph,  the  thrust  of  which  was  to 
criticize  the  use  of  the  judicial  process  as  a  means  of  effecting  social  change.  In  the 
writers'  opinion  Hazard's  contention  that  litigation  is  not  the  best  way  to  achieve 
social  justice  begs  the  question.  For  people  who  are  without  power,  litigation 
frequently  is  the  only  available  remedy.    See  NAACP  v.  Button,  371  U.S.  415    (1962)  . 

4 ABA,  Code  of  Professional  Responsibility  1    (1970)  . 

sThe  emphasis  is  on  group  representation,  bearing  in  mind  that  private  practition- 
ers also  represent  groups  of  people  with  common  interests,  like  business  corporations 
and   labor  unions. 

«The  term  minority  groups  as  used  in  this  article  means  the  groups  in  our 
society  who  are  without  power:  racial  minorities,  the  poor  (as  a  subcultural  group)  , 
and  students. 

?The  writers  have  refrained  from  using  the  phrase  pro  bono  publico.  The  term 
means  different  things  to  different  people.  See  F.  Marks,  The  Lawyer,  the  Public 
and  Professional  Responsibility  1-45    (1972)     (an  American  Bar  Foundation  Study). 


336  MISSISSIPPI  LAW  JOURNAL  [vol.44 

is  not  in  the  public  interest.  All  too  often  the  public  interest  has  been 
interpreted  to  mean  that  which  nets  both  the  client  and  his  lawyer 
the  highest  incomes.  Years  ago,  Mr.  Justice  Brandeis  questioned  whether 
the  practice  of  law  has  become  more  of  a  trade  than  a  profession.8 
The  answer  to  that  question  during  the  remainder  of  this  century 
may  very  well  depend  upon  the  continued  development  of  the  present 
trend  toward  affording  quality  representation  to  the  groups  in  our 
society  that  have  previously  gone  unrepresented.  If  this  small  but 
significant  trend  continues,  our  adversary  system  will  have  the  oppor- 
tunity to  work  as  it  should. 

Until  recently,  however,  the  trend  had  definitely  been  going  the 
other  way.  The  increasing  size  and  complexity  of  business,  resulting  in 
more  and  more  specialization  by  lawyers,  the  trend  toward  larger  and 
larger  law  firms,  and  the  increasing  adoption  and  use  of  minimum  fee 
schedules9  have  contributed  to  the  strong  representation  of  private 
interests,  to  the  exclusion  of  public  interests  except  via  the  vehicle  of 
government.10 

One  must  inevitably  conclude  that  the  practice  of  law  is  a  public 
utility.  It  is  a  monopoly  protected  by  law.  Instead  of  being  regulated 
by  a  governmental  agency,  however,  our  own  particular  public  utility 
is  self-regulated.  Our  canons  of  ethics  explicitly  state  that  a  lawyer 
may  choose  whom  he  will  represent  as  a  client.  Ethical  Consideration 
2-26  of  the  new  Code  of  Professional  Responsibility  encourages  the 
representation  of  those  not  otherwise  represented,  but  it  is  persuasive 
only.  As  Marks  has  expressed  it:  "There  are  no  disciplinary  procedures 
for  the  lawyer  who  refuses  to  take  a  case  .  .  .  The  absence  of  controls 
over  the  lawyer  with  respect  to  what  he  turns  away  is  socially  danger- 
ous."11 By  our  own  inaction  and  indifference,  lawyers  are  allowed,  with- 
out legal  or  even  moral  sanction,  to  defeat  the  objectives  of  our  judicial 
system  by  failing  or  refusing  to  furnish  counsel  to  the  groups  in  our 

8The  whole  area  of  the  lawyer's  professional  responsibility  has  been  examined 
exhaustively  by  the  American  Bar  Foundation.  Mr.  Justice  Brandeis'  prophetic 
writings  are  discussed  in  Chapter  1  of  the  ABF  Study.  Id. 

sThe  ABF  study  makes  the  point  that  "By  adopting  a  minimum  fee  schedule— 
the  legal  profession  defined  a  group  which  could  not  afford  services."  Id.  at  17. 

iQThis  article  has  to  do  with  the  public  interest  work  of  lawyers  in  the  private 
sector,  including  those  who  work  for  the  OEO  funded  programs,  whose  grants  are 
made  to  private  non-profit  entities,  and  whose  clients  are  private  individuals  and 
groups.  Nothing  herein  is  intended  to  demean  the  work  of  public  interest  lawyers 
who  work  for  governmental  agencies.  They  are  simply  in  a  different  category.  The 
interests  of  minority  groups  and  governmental  agencies  may  or  may  not  coincide. 
Most  of  the  time  they  do  not.   Governmental  agencies  usually  respond  to  the  majority. 

nF.  Marks,  supra  note  7,  at  290. 


1973]  REPRESENTING  THE  UNREPRESENTED  337 

society  who  are  without  the  money  to  pay  our  fees  or  whose  cause  is 
politically  unpopular.12 

The  issue,  however,  is  more  complex  than  mere  individual  inaction 
and  indifference.  The  particular  way  in  which  our  legal  system  has 
developed  makes  it  a  practical  impossibility  for  lawyers  to  represent 
competing  political  and  economic  interests.  Lawyers  tend  to  identify 
with  their  clients.  Those  who  handle  negligence  cases  usually  rep- 
resent either  plaintiffs  or  defendants,  but  not  both;  a  trend  which  has 
led  to  the  formation  of  special  interest  bar  groups  which  espouse  the 
particular  political  philosophy  of  their  constituencies.  The  public- 
interest  lawyers  are  following  the  same  pattern.13  The  continued  develop- 
ment of  the  new  public-interest  law  groups  is  therefore  a  practical 
necessity  if  our  system  of  justice  is  to  be  anything  more  than  a  mockery 
of  the  word  itself. 

Public-interest  practice  in  Mississippi  was  born  out  of  agonizing 
necessity.  It  was  not  a  mere  fortuity  that  the  plaintiffs  in  major  cases 
involving  prison  reform  and  equalization  of  municipal  services  suddenly 
found  themselves  with  advocates  in  federal  court.  Events  in  ostensibly 
unrelated  substantive  areas— the  manner  in  which  the  Supreme  Court 
of  the  United  States  chose  to  implement  the  principles  enunciated  in 
Brown  v.  Board  of  Education14  (Brown  II),  and  the  decision  of  the 
Court  in  NAACP  v.  B utton15— occurred  making  Gates  and  Hawkins 
possible. 

In  Brown  II,  by  leaving  desegregation  to  individual  school  boards, 
with  each  district  court  "supervising"  and  "approving"  their  action, 
the  Court  assumed  the  use  of  our  adversary  system  which  depends  upon 
the  availability  of  counsel  for  both  sides  if  it  is  to  work  properly.16 
Button  arose  because  of  the  dearth  of  available  counsel  to  represent 

^Representation  of  unpopular  clients  and  causes  is  not  new.  John  Adams  set 
the  stage  for  it  before  this  country  was  ever  born.  The  American  Civil  Liberties  Union 
has  had  a  long  and  illustrious  history  of  defending  the  principle  that  every  person,  no 
matter  how  unpopular,  is  entitled  to  his  day  in  court.  In  spite  of  these  precedents, 
however,  the  growing  complexity  of  our  socio-economic  system  has  allowed  whole 
groups  of  people  to  suffer  injustices  because  of  their  lack  of  representation. 

isThe  National  Legal  Aid  and  Defender  Association  is  made  up  of  staff  lawyers 
in  legal  services  programs  and  public  defender  offices.  Philosophically,  the  National 
Lawyers  Guild  is  further  to  the  left.  The  National  Conference  of  Black  Lawyers  is 
primarily  concerned  with  issues  affecting  the  rights  of  black  people. 

14349  U.S.  294    (1955) . 

15371  U.S.  415    (1962). 

isThe  alternatives  open  to  the  court  were  discussed  in  Lelflair  &  Davis,  Segrega- 
tion in  the  Public  Schools,  61  Harv.  L.  Rev.  377,  392    (1954)  . 


338  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

black  plaintiffs  in  school  desegregation  suits.17  In  order  to  enforce  the 
Brown  decision,  the  NAACP  worked  out  a  system  of  bringing  interested 
parents  in  contact  with  NAACP  staff  lawyers.  The  usual  procedure 
was  for  NAACP  leaders  to  call  or  attend  community  meetings  with 
groups  of  black  parents  who  were  interested  in  school  desegregation. 
Parents  who  were  willing  to  participate  in  the  contemplated  litigation 
would  sign  printed  forms  authorizing  NAACP  lawyers  to  represent 
them  in  appropriate  enforcement  cases.  In  Virginia  and  seven  other 
states,  including  Mississippi,  such  procedures  were  prohibited  by  newly 
enacted  or  strengthened  statutes  prohibiting  barratry,  champerty,  and 
maintenance.  In  the  Virginia  case  leading  to  Button,  the  Virginia 
court  described  that  state's  statutes  as  being  "parts  of  the  general  plan 
of  massive  resistance  to  the  integration  of  schools  of  the  state  under  the 
Supreme  Court's  decrees."18  The  Mississippi  statutes  were  strengthened 
and  reinforced  in  the  same  vein.19 

In  Button  the  Court  held  that  the  Virginia  statute,  as  construed 
and  applied  by  that  state,  violated  the  defendants'  first  amendment 
rights  of  assembly  and  petition  for  redress  of  grievances.  The  Court  said: 

In  the  context  of  NAACP  objectives,  litigation  is  not  a  tech- 
nique of  resolving  private  differences;  it  is  a  means  for  achiev- 
ing the  lawful  objectives  of  equality  of  treatment  by  all  govern- 
ment, federal,  state  and  local,  for  the  members  of  the  Negro 
community  in  this  country.  It  is  thus  a  form  of  political  expres- 
sion. Groups  which  find  themselves  unable  to  achieve  their 
objectives  through  the  ballot  frequently  turn  to  the  Courts.20 

Further  along  in  its  opinion,  the  Court  said: 

And  under  the  conditions  of  modern  government,  litigation 
may  well  be  the  sole  practicable  avenue  open  to  a  minority  to 
petition  for  redress  of  grievances.21 

Implicit  in  the  Court's  opinion  in  Button  was  its  recognition  that 
without  some  similar  system  of  group  solicitation  and  furnishing  of 
staff  counsel  by  the  NAACP,  its  decision  in  Brown  would  never  be 
implemented.  In  a  masterpiece  of  understatement  (or  perhaps  sarcasm) 
the  Court  said:  "Lawsuits  attacking  racial  discrimination,  at  least  in 
Virginia,  are  neither  very  profitable  nor  very  popular.  They  are  not 
an  object  of  general  competition  of  Virginia  lawyers;  the  problem  is 

i7H.  Horowitz  &  K.  Karst,  Law,  Lawyers  and  Social  Change  298-301    (1969) . 
isNAACP  v.  Pattey,  159  F.  Supp.  503,  513    (1958)  . 
i&Miss.  Code  Ann.  §§  2049-01  et  seq.    (1956) . 
20371  U.S.  at  429. 
21/d.  at  440. 


1973]  REPRESENTING  THE  UNREPRESENTED  339 

rather  one  of  an  apparent  dearth  of  lawyers  who  are  willing  to  undertake 
such  litigation."22 

Button  also  set  the  stage  for  various  types  of  group  legal  services.23 
In  the  fields  of  poverty  and  civil  rights,  however,  it  was  the  lack  of 
representation,  particularly  group  representation,  that  was  and  still 
is  the  determining  factor  in  the  development  of  the  public  interest 
groups  in  Mississippi. 

A.     The  "Farish  Street"2*  Lawyers 

The  civil  rights  movement  in  Mississippi  had  coalesced  and  grown 
in  strength  even  before  the  civil  rights  lawyers  groups  were  formed. 
National  attention  focused  on  Mississippi  with  James  Meredith's  ad- 
mission to  the  University  of  Mississippi  in  1962,  and  with  Medgar  Evers' 
murder  in  1963.  Those  events  assured  Mississippi  of  its  role  in  the 
civil  rights  movement. 

The  earliest  group  of  "Farish  Street  lawyers"  was  the  NAACP  Legal 
Defense  and  Educational  Fund,  Inc.  (LDF),  popularly  referred  to  as 
the  "Inc.  Fund."  Although  the  staff  office  in  Jackson  was  not  opened 
until  the  latter  part  of  1963,  the  Inc.  Fund's  presence  in  Mississippi 
had  been  felt  long  before.  Its  staff  lawyers  in  New  York  had  filed  and 
prosecuted  the  suit  for  the  desegregation  of  the  University  of  Missis- 
sippi.25 Working  initially  in  association  with  the  three  black  lawyers 
in  Jackson  (who  were  the  only  black  practitioners  in  Mississippi  at  that 
time),  the  New  York  staff  began  the  long  and  arduous  task  of  imple- 
menting the  Brown  decision  in  the  public  schools  of  Mississippi.26  The 
internship  program  of  the  Herbert  Lehman  Fund  (a  subsidiary  of  LDF) 
also  produced  the  first  racially  integrated  law  firm  in  Mississippi27 
and  provided  the  setting  for  the  education  and  training  of  Mississippi 
blacks  for  civil  rights  practice  in  their  home  state. 

In  the  spring  of  1963,  President  John  F.  Kennedy  called  a  con- 
ference of  lawyers  at  the  White  House.    The  President  spoke  of  the 

22/d.  at  443. 

23United  Transp.  Union  v.  Michigan,  401  U.S.  576  (1970) ;  United  Mine  Workers 
v.  Illinois  Bar  Ass'n,  389  U.S.  217  (1967)  ;  Brotherhood  of  R.R.  Trainmen  v.  Virginia 
Bar  Ass'n,  377  U.S.  1  (1963)  ;  Note,  Group  Legal  Services  and  the  Right  of  Association, 
63  Mich.  L.  Rev.  1089  (1965).  This  group  of  cases  resulted  in  amendments  to  the 
Canons  of  Ethics  to  allow  for  the  Court's  rulings.  See  the  preface  to  the  new  Code 
of  Professional  Responsibility. 

24The  main  street  in  the  black  commercial  section  of  Jackson,  Mississippi. 

25Meredith  v.  Fair,  298  F.2d  696    (5th  Cir.  1962)  . 

26Evers  v.  Jackson  Mun.  Sep.  School  Dist.,  232  F.  Supp.  241    (S.D.  Miss.  1964)  . 

27Anderson,  Banks,  Nichols  and  Leventhal;  Jackson,  Mississippi. 


340  MISSISSIPPI  LA  W  JO  URNAL  [vol.  44 

millions  of  black  Americans,  who,  because  of  their  race,  received  neither 
justice,  equality,  nor  legal  protection.28  The  conference  resulted  in 
the  formation  of  the  President's  Committee  for  Civil  Rights,  later 
renamed  The  Lawyers'  Committee  For  Civil  Rights  Under  Law 
(LCCRUL).  Referred  to  in  its  early  days  as  the  "President's  Committee," 
LCCRUL  was  the  most  prestigious  of  the  "Farish  Street"  lawyer  groups. 
It  was  also  mistakenly  regarded  as  being  the  most  financially  secure.29 

In  the  summer  of  1964,  James  Chaney,  Michael  Schwerner,  and 
Andrew  Goodman  were  murdered  in  Neshoba  County.  That  summer, 
the  long,  hot  summer  of  1964,  LCCRUL  undertook  its  first  Mississippi 
project  —  to  send  volunteers  into  the  state  to  represent  clergymen  and 
students  working  with  CORE,  SNCC,  and  COFO. 

The  same  crisis  and  the  same  commitment  and  response  of  na- 
tional leaders  to  the  cause  of  civil  rights  also  led  to  the  formation  of 
the  Lawyers'  Constitutional  Defense  Committee  (LCDC).  In  the  spring 
of  1964,  in  response  to  the  pleas  of  the  handful  of  black  lawyers  in 
Alabama,  Louisiana  and  Mississippi,  the  chief  legal  officers  of  the  na- 
tion's leading  groups  concerned  with  race  relations,  civil  rights,  and 
human  rights,  joined  together  to  form  LCDC.  The  General  Counsel 
or  chief  legal  officer  of  the  NAACP,  the  NAACP  Legal  Defense  and 
Educational  Fund,  Inc.,  the  Commission  on  Religion  and  Race  of  the 
National  Council  of  Churches,  American  Civil  Liberties  Union,  The 
American  Jewish  Committee,  The  American  Jewish  Congress,  Southern 
Christian  Leadership  Conference,  Congress  of  Racial  Equality,  Student 
Nonviolent  Coordinating  Committee,  and  The  National  Catholic  Con- 
ference for  Inter-racial  Groups  formed  the  first  Board  of  Directors  of 
LCDC.30  Both  LCCRUL  and  LCDC  decided  to  open  litigating  offices  in 
Jackson  -  LCDC  in  the  fall  of  1964,  and  LCCRUL  in  the  spring  of  1965. 
LCCRUL  was  the  only  group  that  sought  to  establish  a  work- 
ing relationship  with  the  Mississippi  State  Bar  .The  committee  worked 
out  an  understanding  that  allowed  its  volunteers  and  staff  to  appear 
in  Mississippi  courts.  The  committee  was  to  screen  and  select  its 
volunteers  on  the  basis  of  their  answers  to  the  same  questionnaires 
used  for  evaluating  appointees  to  the  federal  bench,  and  the  volun- 
teers were  to  be  trained  in  Mississippi  law,  procedures,  and  ethics. 
LCCRUL  viewed  its  new  project  essentially  as  missionary  work.  "Un- 
fortunately," the  committee  said,  "the  unprecedented  number  of  cases 

28LAWYERS    COMMITTEE    FOR   ClVIL    RIGHTS    UNDER   LAW,   ANNUAL   REPORT,    1968-69. 

29Actually  the  financial  support  of  the  NAACP  Legal  Defense  and  Educational 
Fund,  Inc.,  was  just  as  sound,  if  not  more  so. 

soFrom  an  unpublished  history  of  LCDC  furnished  to  the  writers  by  Alvin  J. 
Bronstein,  former  chief  staff  counsel  of  the  LCDC  office  in  Jackson. 


1973]  REPRESENTING  THE  UNREPRESENTED  341 

involving  defendants  who  are  both  indigent  and  unpopular,  and  the 
lack  of  community  understanding  of  the  responsibilities  of  the  Bar  .  .  . 
leads  to  widespread  local  condemnation  of  those  representing  clients 
in  civil  rights  matters  .  .  .  ."31 

Two  years  later,  in  1967,  the  Jackson  office  of  LCCRUL  had  rep- 
resented more  than  1,500  clients  and  had  a  full  time  staff  of  five  law- 
yers. Although  the  Committee  had  "sought  a  cordial  relationship  with 
the  Mississippi  Bar  with  the  ultimate  aim  of  transferring  civil  rights 
cases  from  the  Committee  to  members  of  the  Bar,"  little  progress  had 
been  made  toward  that  goal.  The  committee's  relations  with  the  Missis- 
sippi State  Bar  were  characterized  in  the  1966  annual  report  as  "good, 
though  not  intimate,"  but  by  the  end  of  that  year  they  had  broken 
down.  On  December  1,  1966,  complaining  of  violations  of  the  "letter 
and  the  spirit"  of  the  1965  agreement  under  which  the  committee  had 
opened  the  Jackson  office,  the  bar  withdrew  its  consent.32 

The  Mississippi  bar's  action  apparently  stemmed  from  the  fact  that 
the  Jackson  office  had  perceived  the  need  for,  and  had  commenced, 
affirmative  litigation  going  well  beyond  criminal  defense.  The  case  of 
Anderson  v.  Nosser33  had  been  filed,  seeking  civil  damages  for  the  1965 
arrest,  imprisonment,  and  mistreatment  of  more  than  200  demonstrators 
in  Natchez.  Roberts  v.  Williams,34  had  also  been  filed,  asking  damages 
for  the  blinding  of  a  14-year-old  boy  from  a  shotgun  blast  fired  by  an 
armed  trusty  in  a  county  prison  farm.  Mississippi's  Secretary  of  State 
had  been  sued  to  establish  the  right  of  a  poverty  organization  to  incor- 
porate.35 Other  suits  had  been  filed  concerning  discrimination  in  jury 
selection  and  in  election  practices,  injustices  in  plantation  owners'  han- 
dling of  federal  subsidy  payments  due  sharecroppers,  and  removals  to 
federal  court  of  harassing  state  court  damage  suits  brought  against  civil 
rights  boycotters. 

The  committee  made  efforts  to  patch  up  its  differences  with  the 
Mississippi  bar  in  the  winter  of  1967  —  68,  but  equilibrium  was  reached 

3iLawyers'  Committee  For  Civil  Rights  Under  Law,  Statement  of  Purpose 
and  Activities    (1965) . 

32The  facts  and  quotes  in  this  paragraph  are  taken  from  the  draft  of  an  ap- 
plication by  the  Lawyers'  Committee  to  the  Ford  Foundation,  dated  December  12, 
1971. 

33438  F.2d  183  (5th  Cir.  1971) ,  modified  on  rehearing  en  banc,  456  F.2d  835  (5th 
Cir.  1972). 

34456  F.2d  819    (5th  Cir.  1971) . 

35Smith  v.  Ladner,  288  F.  Supp.  66  (S.D.  Miss.  1968) ,  held  that  Miss.  Code  Ann.  § 
5310.1  (Supp.  1972)  was  unconstitutional  and  void  because  it  allowed  the  Governor 
unlimited  discretion  to  grant  or  refuse  the  issuance  of  charters  for  non-profit  corpo- 
rations. 


342  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

only  after  the  committee  initiated  and  won  a  mandamus  action  in  the 
Fifth  Circuit  challenging  the  restrictive  practice  order  of  the  district 
court.36  The  decision  effectively  meant  that  out-of-state  practitioners 
could  represent  clients  in  civil  rights  cases  in  Mississippi  as  a  matter 
of  right. 

In  the  summers  of  1964,  1965,  and  1966,  the  emphasis  of  all  three 
groups,  supported  by  volunteer  lawyers  from  outside  the  state  and  small 
staff  offices,  was  to  fight  the  steel-hard,  inflexible,  undeviating  official 
policy  of  segregation.37  With  the  exception  of  the  Inc.  Fund's  school 
desegregation  cases,  the  work  of  all  three  groups  in  the  early  years  of  the 
civil  rights  movement  can  be  described  as  defensive  in  nature.  Volun- 
teers and  staff  lawyers  alike  were  kept  busy  in  "defense  of  civil  actions 
and  criminal  prosecutions  against  Negroes  and  civil  rights  workers  as- 
sertedly  brought  to  harass  and  intimidate  .  .  .  [civil  rights  workers]  on 
account  of  their  involvement  in  civil  rights."38  In  perspective,  however, 
the  work  was  not  really  defensive  in  effect;  the  lawyer's  clients  were 
actually  very  much  on  the  offensive. 

Prior  to  the  Supreme  Court's  decision  in  Greenwood  v.  Peacock,39 
in  cases  where  civil  rights  workers  were  charged  with  obstructing  public 
streets,  disturbing  the  peace,  inciting  to  riot,  and  other  related  violations 
of  the  law,  the  usual  procedure  was  to  petition  for  removal  to  federal 
court,  alleging  that  the  arrest  had  the  "sole  purpose  and  effect  of  haras- 
sing petitioners  and  of  punishing  them  and  deterring  them  from  exercise 
of  their  constitutionally  protected  right  to  protest  the  conditions  of  racial 
discrimination  and  segregation."40  The  Court's  decision  in  Peacock 
eliminated  the  removal  procedures  as  a  means  of  defeating  politically 
motivated  criminal  charges  against  civil  rights  workers.  In  proscribing 
the  removal  route,  however,  the  Court  was  careful  not  to  condone  the 
abuse  by  southern  authorities  of  the  criminal  judicial  processes.  The 
Court  specifically  pointed  out  that  the  aggrieved  defendants  had  federal 
claims,  but  that  "there  are  many  other  [constitutionally  valid]  remedies 
available.  .  .  ."41   The  decision  set  the  stage  for  a  counterattack  against 

36Sanders  v.  Russell,  401  F.2d  241  (5th  Cir.  1968)  .  The  rule  permitted  pro  hac 
vice  appearances  by  out-of-state  lawyers  in  non-fee  generating  civil  rights  cases  only 
(a)  if  the  lawyer  was  an  actual  nonresident  of  the  state  (b)  for  one  case  in  any  12- 
month  period,  and  (c)  if  the  lawyer  had  been  admitted  to  the  bar  in  his  home  state 
for  5  years. 

37Meredith  v.  Fair,  298  F.2d  696    (5th  Cir.  1962) . 

aspiaintiff's  post-trial  brief  in  Sobol  v.  Perez,  No.  67-243   (E.D.  La.,  April  8,  1968) . 

39384  U.S.  808    (1966). 

4o/d.  at  813. 

4i/d.  at  827. 


1973]  REPRESENTING  THE  UNREPRESENTED  343 

the  various  statutes  and  ordinances  with  which  the  civil  rights  workers 
were  being  harassed. 

The  early  efforts  of  the  Farish  Street  lawyers  enabled  the  civil  rights 
movement  to  accomplish  its  major  objectives.  The  work  also  had  a  pro- 
found effect  on  the  volunteers.  They  came  face  to  face  with  a  legal  sys- 
tem in  crisis.  The  issues  were  not  obscure;  the  system  was  resisting  change 
that  was  compelled  in  terms  of  judicially  articulated  rights.  The  volun- 
teers also  felt  the  effects  of  being  outside  the  prevailing  social  system, 
which  was  a  new  experience  for  them.  Many  of  them  began  to  view 
problems  of  racial  and  economic  discrimination  in  their  own  states  in  a 
new  light  and  continued  to  participate  in  comparable  litigation  in  their 
home  communities.42 

For  those  lawyers  who  remained  in  Mississippi,  questions  of  strategy 
and  ongoing  purpose  emerged.  Although  there  was  no  clear  line  of 
demarcation,  1966  is  generally  regarded  as  being  the  first  year  of  affirma- 
tive litigation.  The  Supreme  Court's  decision  that  year  in  Peacock  had 
at  least  symbolic  importance.  In  effect,  LCCRUL  and  LCDC  took  that 
decision  to  task  and  began  a  concerted  attack  on  the  various  statutes  and 
ordinances  under  which  the  civil  rights  workers  were  being  incarcerated. 
The  following  excerpt  from  an  LCDC  brief,  written  at  the  height  of  the 
civil  rights  movement,  characterizes  the  work  of  both  groups: 

They  [LCDC  dockets]  include  affirmative  actions  to  desegre- 
gate schools,  hospitals,  municipal  facilities  and  establishments 
covered  by  Title  II  of  the  Civil  Rights  Act  of  1964;  actions 
challenging  employment  discrimination  under  Title  VII;  in- 
junctive actions  to  void  unconstitutionally  repressive  statutes 
and  ordinances  that  inhibit  peaceful  civil  rights  demonstrations 
and  organizational  activities;  damage  actions  under  the  federal 
civil  rights  jurisdiction  to  redress  and  discourage  police  brutality 
against  demonstrators;  suits  against  racially  discriminatory  vot- 
ing statutes  and  practices  (including  reapportionment  cases) 
and  against  patterns  and  instances  of  racial  discrimination  in 
jury  selection  and  other  aspects  of  criminal  law  administration. 
They  also  include  the  organization  and  legal  counseling  of  Ne- 
gro voter  registration  groups,  cooperatives  and  community  ac- 
tion projects;  and  advising  these  groups  on  their  rights  and 
opportunities  under  such  federal  or  mingled  state  and  federal 
programs  as  the  Agricultural  Stabilization  and  Conservation 
Service,  Veterans'  Administration,   Small  Business  Administra- 


42The  Lawyers'  Committee  brokerage  operation  in  urban  centers  is  described  in 
F.  Marks,  supra  note  7,  ch.  5.  The  brokerage  operation  began  with  LCCRUL's  Miss- 
issippi project  in  1964-65. 


344  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

tion,  Social  Security,  Welfare,  and  Economic  Opportunity 
Act.43 

B.     The  OEO  Legal  Services  Programs 

The  concern  during  the  1960's  for  the  plight  of  the  poor  and  racial 
minorities  was  not  entirely  without  response  in  Mississippi.  The  year 
1966  marked  the  beginning  of  the  OEO-funded  Legal  Services  Program 
in  Mississippi.  The  impetus  for  this  program  came  from  within  the 
state.  The  Economic  Opportunity  Act  of  1964,44  which  created  the 
Office  of  Economic  Opportunity,  did  not  include  any  provision  for 
Legal  Services.  The  program  was  born  out  of  the  realization  that  for  the 
war  on  poverty  to  be  effective,  the  legal  rights  of  poor  people  as  an 
identifiable  group  must  be  represented.  In  the  fall  of  1965,  Legal 
Services  was  established  as  a  semi-autonomous  unit  within  the  Office  of 
Economic  Opportunity.  The  program  was  to  represent  indigents  in  a 
full  range  of  civil  matters.45  The  purpose  of  the  organization,  however, 
went  far  beyond  traditional  legal  aid.  Legal  Services  was  to  be  a  social 
force  as  well  as  a  service  agency: 

[W]e  cannot  be  content  with  the  creation  of  systems  rendering 
free  legal  assistance  to  all  people  who  need  but  cannot  afford 
the  lawyer's  advice.  This  program  must  contribute  to  the  suc- 
cess of  the  War  on  Poverty.  Our  responsibility  is  to  marshall 
the  forces  of  law  and  the  strength  of  lawyers  to  combat  the 
causes  and  effects  of  poverty.  Lawyers  must  uncover  the  legal 
causes  of  poverty,  remodel  the  systems  which  generate  the  cycle 
of  poverty,  and  redesign  new  social,  legal,  and  political  tools 
and  vehicles  to  move  poor  people  from  deprivation,  depression, 
and  despair  to  opportunity,  hope  and  ambition.  .  .  ,"46 

Legal  Services  announced  the  following  as  one  of  the  purposes  of 
the  program: 

To  ascertain  what  rules  of  law  affecting  the  poor  should  be 
changed  to  benefit  the  poor  and  to  achieve  such  changes  either 
through  the  test  case  and  appeal,  statutory  reform,  or  changes 
in  the  administrative  process.47 

43Plaintiff's  post-trial  brief  in  Sobol  v.  Perez,  Civil  No.  67-243  (E.D.  La.,  April  8, 
1968)    (three-judge  court) . 

44Act  of  August  20,  1964,  Pub.  L.  No.  88-452,  78  Stat.  508  codified  at  42  U.S.C.  §§ 
2701  et  seq.   (1970)  . 

45Stump,  Law  and  Poverty:  A  Political  Perspective,  1968  Wis.  L.  Rev.  694, 
696-97. 

461966  Address  by  E.  Clinton  Bamberger,  Jr.,  to  the  National  Conference  of  Bar 
Presidents,  as  quoted  in  Stump,  supra  note  45,  at  711-12. 

47Stump,  supra  note  45  at  697.  See  also  The  Legal  Services  Corporation;  Curtailing 
Political  Interference,  81  Yale  LJ.  231    (1971)  . 


1973]  REPRESENTING  THE  UNREPRESENTED  345 

By  1967,  Legal  Services  was  a  national  program  employing  over  1,800 
lawyers  in  over  289  projects,  including  North  Mississippi  Rural  Legal 
Services  (NMRLS) ,  which  had  been  funded  in  April  1966,  as  a  research 
and  demonstration  program  at  the  University  of  Mississippi  School  of 
Law.  Originally  named  Lafayette  County  Legal  Services,  NMRLS  was 
conceived  by  its  founders  as  a  combination  legal  services  and  teaching 
program.  The  original  director  and  his  staff  lawyers  were  members  of 
the  law  faculty  and  worked  part  time  in  each  capacity.  Participation  of 
law  students  was  to  be  an  integral  part  of  the  program.  One  of  the  origi- 
nal objectives  was  to  infuse  the  law  school  curriculum  with  an  emphasis 
on  the  legal  problems  of  the  poor.48 

NMRLS  was  also  originally  intended  as  a  judicare  or  referral  type 
program.  The  bulk  of  the  legal  work  was  performed  initially  by  local 
private  practitioners  working  under  a  stipulated  fee  schedule.49  The  re- 
ferral system,  however,  proved  unsatisfactory  both  to  OEO  and  to  the 
client  community.50  As  a  result  of  the  staff  lawyers  identifying  with  their 
clients'  causes  coupled  with  pressure  from  both  client  representatives 
and  OEO,  the  NMRLS  staff  lawyers  began  to  file  class  action  suits  affect- 
ing groups  of  poor  people,  as  opposed  to  handling  a  service-type  caseload 
only.  This  shift  in  emphasis  caused  political  repercussions  in  the  state 
which  ultimately  resulted  in  the  termination  of  University  sponsorship 
of  the  program.51  In  1968,  Mary  Holmes  College  at  West  Point  became 
the  NMRLS  grantee.  The  staff  lawyers  who  elected  to  stay  with  the 
Legal  Services  Program  were  discharged  from  the  faculty,52  and  the  re- 
ferral system  involving  local  practitioners  was  gradually  abandoned. 
The  program  became  closely  identified  with  the  poverty-civil  rights 
movement,  and  in  the  ensuing  years  was  responsible  for  significant  legal 
reform  litigation. 

Coahoma  Legal  Aid,  Inc.  (CLA)  was  also  funded  in  1966  as  a 
single  county  program.  Until  this  year  the  Clarksdale  program  was 
funded  through  the  local  Community  Action  Program  agency,  Coahoma 
Opportunities,  Inc.,  but  is  now  being  funded  directly  from  the  Office  of 
Legal  Services  in  Washington.  Coahoma  began  with  members  of  the 
local  bar  staffing  the  office  for  a  week  at  a  time.  Later,  one  staff  attorney 
was  employed;  still  later  a  second  lawyer  was  added,  so  that  for  the  past 

48The   facts  in    this  paragraph   are   taken   from   the   narrative   statement   of  the 
program  contained  in  the  original  NMRLS  proposal  to  OEO. 

49/d. 

soOEO  Project  Evaluation  Report  on  Lafayette  County  Legal  Services   (Sept. 
6,  1967) . 

siEgerton,  Shake  up  at  Ole  Miss,  Change,  Winter  1972-73,  at  24,  27. 
52Trister  v.  University  of  Miss.,  420  F.2d  499    (5th  Cir.  1969)  . 


346  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

several  years  CLA  has  been  a  two-lawyer  office.  CLA  has  primarily  a 
service-type  caseload,  but  it  has  done  some  significant  law  reform  litiga- 
tion, primarily  in  the  area  of  juvenile  rights. 

Choctaw  Legal  Services  was  funded  by  OEO  in  1967  as  a  part  of  the 
Choctaw  Community  Action  Program.  A  one-lawyer  office  was  estab- 
lished at  Philadelphia  to  provide  legal  services  for  the  approximately 
4,000  members  of  the  Mississippi  Band  of  Choctaw  Indians  in  central 
Mississippi.  The  program  continued  until  1972  when  funding  was  termi- 
nated by  OEO  for  a  variety  of  reasons  best  known  to  that  agency.  In 
1972  an  effort  was  made  to  merge  the  Choctaw  program  with  NMRLS, 
but  when  the  proposed  merger  proved  to  be  impractical  the  grant  was 
terminated.  The  Choctaw  program  has  now  been  reactivated  with  pri- 
vate funding.53 

Jackson  Hinds  Community  Legal  Services  (CLS) ,  now  incorporated 
as  Community  Legal  Services  of  Mississippi,  Inc.,  was  funded  by  OEO- 
Office  of  Legal  Services  in  March  1971.  Although  CLS  was  funded  over 
the  objections  of  the  Mississippi  State  Bar  and  the  Hinds  County  Bar 
Association,  a  number  of  private  practitioners  in  Jackson  have  served  on 
its  board  of  directors.  CLS  had  been  in  operation  for  almost  a  year 
through  a  grant  from  a  private  foundation  before  it  was  funded  by  OEO. 
It  was  thus  an  ongoing  program  at  the  time  of  its  funding  by  OEO  and 
was  able  to  expand  its  caseload  within  a  short  period  of  time.  During  its 
few  short  years  of  existence,  CLS  has  maintained  an  unusually  large 
service-type  caseload.  Simultaneously,  however,  it  has  embarked  upon  a 
significant  program  of  impact  litigation,  with  a  variety  of  cases  attacking 
a  wide  range  of  discriminatory  statutes  and  practices  which  perpetuate 
the  cycle  of  poverty. 

Both  NMRLS  and  CLS  have  carried  out  their  programs  without 
approval  of  either  the  Mississippi  State  Bar  or  the  local  bar  associations 
in  the  counties  in  which  they  operate.  The  CLS  grant  has  been  vetoed 
three  times,  once  by  Governor  Williams,  and  twice  by  Governor 
Waller,  NMRLS,  on  the  other  hand,  has  always  been  funded  through 
an  educational  institution  and  is  therefore  not  subject  to  the  Gov- 
ernor's veto.54 

53information  on  the  new  Choctaw  Legal  Services  Program  and  its  importance 
to  the  state  is  contained  in  an  interesting  series  of  articles  on  the  Mississippi  Band 
of  Choctaw  Indians  written  by  a  team  of  writters  on  the  staff  of  the  Memphis 
Commercial  Appeal.  The  Choctaw s— Cheated,  Abused  and  Ignored,  Memphis  Com- 
mercial Appeal,  March  18,  1973,  at  15,  col.  2;  March  19,  1973,  at  13,  col  1;  March  21, 
1973,  at  6,  col.  1. 

5442  U.S.C.  §  2834  (1970) . 


1973]  REPRESENTING  THE  UNREPRESENTED  347 

The  poverty  legal  services  programs  are  in  a  category  apart  from  the 
civil  rights  groups,  insofar  as  impact  litigation  is  concerned.  Although 
their  contribution  in  the  area  of  law  reform  has  been  significant,  the 
OEO-funded  programs  have  always  had  an  extremely  heavy  service-type 
caseload  which  the  privately  funded  groups  do  not  have.  Because  of  the 
controversial  nature  of  their  more  visible  litigation,  however,  the  poverty 
programs  have  been  unfairly  charged  as  having  been  constituted  solely 
for  the  purpose  of  suing  the  establishment. 

In  reporting  on  Governor  Williams'  veto  of  the  first  OEO  grant  to 
CLS  (after  CLS  had  been  in  operation  for  a  year  under  private  funding) 
the  Mississippi  Lawyer  said:  "There  is  no  legal  service  for  the  poor  in- 
volved. Governor  Williams  said,  'The  Grant  is  not  intended  to  assist  the 
poor  with  their  legal  problems.'  "55  This  is  not  borne  out  by  the  facts. 
No  poverty  legal  services  program  can  operate  without  a  heavy  load  of 
routine  cases.  Such  is  the  nature  of  poverty  itself.  For  example,  during 
calendar  year  1972,  CLS  opened  3,000  new  cases.  The  breakdown  on  this 
enormous  caseload,  which  is  fairly  typical  for  any  of  the  Mississippi  pro- 
grams, is  as  follows: 

Consumer  (credit  problems,  truth  in  lending,  debtor's  relief,  etc.)  — 
21  percent. 

Administrative  (welfare,  food  stamps,  social  security,  health  ser- 
vices)—15  percent. 

Housing— 6  percent. 

Family  (divorce  and  separation,  guardianships,  adoptions)  —29  per- 
cent. 

Miscellaneous  (mostly  juvenile  and  youth  court,  habeas  corpus,  mis- 
demeanors) —29  percent. 

All  OEO-funded  Legal  Services  programs  are  required  to  have  client 
representation  on  their  governing  bodies.56  The  Mississippi  programs 
are  no  exception.  Contrary  to  popular  belief,  this  element  of  client  in- 
put really  works.  It  insures  the  responsiveness  of  the  program  to  the 
clients'  needs.  Poor  clients  and  their  elected  representatives  consistently 
demand  the  acceptance  and  discharge  of  routine,  noncontroversial,  day- 
to-day  legal  and  quasi-legal  problems.  Although  their  work  has  over- 
lapped that  of  the  privately  funded  civil  rights  groups,  the  emphasis  of 
the  federal  programs  has  been  more  on  economic  discrimination,  that  is, 
on  the  discriminatory  practices  that  tend  to  keep  people  in  a  perpetual 

55The  Mississippi  Lawyer,  May  1971. 
5642  U.S.C.  §  2791  (b)    (1970) . 


348  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

cycle  of  poverty.57  The  historical  significance  of  the  OEO  programs, 
however,  is  the  same  as  that  of  the  civil  rights  groups;  i.e.,  for  the 
first  time  in  our  state's  history  a  substantial  segment  of  our  population 
has  legal  representation,  not  as  individuals,  dependent  upon  the  largesse 
of  the  legal  profession,  but  representation  as  a  class,  as  a  matter  of  right. 

II.     The  Results  to  Date 

The  public-interest  lawyers  have  been  active  in  Mississippi  for  less 
than  10  years.  What  results  have  they  achieved?  One  answer  to  the 
question  is  obvious:  the  most  serious,  the  most  emotional  and  hotly  con- 
tested issues  in  Mississippi  since  1860  have,  for  the  most  part,  been 
resolved  in  the  courts  instead  of  in  the  streets.  To  the  maximum  extent 
of  their  limited  resources,  the  public-interest  groups  are  "making  the 
system  work  for  everyone,"58  but  the  statement  that  they  have  helped 
our  governmental  processes  to  work  as  intended  begs  for  a  bill  of  par- 
ticulars. One  still  is  prompted  to  ask,  "What  has  their  work  accom- 
plished?"  The  best  answer  is  a  review  of  the  cases. 

A.     School  Desegregation 

In  assessing  the  value  of  employing  the  judicial  process  as  a  means 
of  effecting  social  change,  no  group  of  cases  can  demonstrate  such  pro- 
found impact  as  those  involving  school  desegregation.  Harry  Kalven,  Jr., 
in  commenting  on  the  closely  related  first  amendment  problems  arising 
out  of  what  has  been  called  the  "counterattack  of  the  South"  against  the 
NAACP,  observed: 

One  of  the  most  distinctive  features  of  the  Negro  revolution  has 
been  its  almost  military  assault  on  the  Constitution  via  the  strat- 
egy of  systematic  litigation.  In  brief,  by  forcing  its  controversies 
into  Court,  it  has  accelerated  mightily  the  evolving  of  legal  doc- 
trine defining  Negro  rights.  Thus  the  first  great  step  in  the 
movement  has  been  the  effort  to  make  the  United  States  Su- 
preme Court  confront  the  Negro's  constitutional  claims  and 
grievances  and  give  the  Negro  his  constitutional  due.  There  has 
been  much  speculation  in  the  philosophy  of  law  about  the 
sources  of  legal  growth;  here,  however,  the  stimulus  is  clear. 
Here  there  has  been  no  waiting  for  the  random  and  mysterious 
process  by  which  controversies  are  finally  brought  to  the  Court; 
there  has  been  rather  a  marshaling  of  cases,  a  timing  of  litiga- 

57Regulatory  statutes  which  otherwise  perform  a  useful  and  necessary  function  in 
society  frequently  discriminate  against  the  poor.  See  the  section  on  Property  Rights 
and  the  14th  amendment,  infra. 

58The  phrase  is  borrowed  from  the  title  of  the  Lawyers'  Committee  For  Civil 
Rights  Under  Law,  Annual  Report,  1968. 


1973]  REPRESENTING  THE  UNREPRESENTED  349 

tion,  a  forced  feeding  of  legal  growth.  This  has  been  a  brilliant 
use  of  democratic  legal  process,  and  its  success  has  been  de- 
servedly spectacular.  I  am  old-fashioned  enough  to  read  the 
development,  not  as  political  pressure  on  the  Court  which  then 
as  a  political  institution  responded,  but  rather  as  a  strategy  to 
trap  democracy  in  its  own  decencies.  The  Negro1  rights  in  an 
important  sense  were  always  there.  What  was  needed  was  a 
strategy  for  bringing  them  to  light.  The  agency  responsible  for 
this  remarkable  development  and  use  of  law  has  been  the 
NAACP.59 

A  review  of  the  reported  decisions  in  Singleton  v.  Jackson  Municipal 
Separate  School  District,™  furnishes  an  overview  of  the  successive  stages 
of  school  desegregation  in  Mississippi:  first,  the  rejection  of  defendants' 
contention  that  plaintiffs  had  failed  to  exhaust  their  administrative 
remedies,61  followed  by  a  preemptory  rejection  of  defendants'  attempts 
to  overthrow  Brown;62  then  the  first  order  for  a  "good  faith  start"  toward 
desegregation  by  the  adoption  of  a  gradual  plan  pending  appeal;63  then 
approval  of  a  freedom  of  choice  plan  under  HEW  guidelines,  including 
gradual  desegregation  by  grades,  with  total  desegregation  to  be  com- 
pleted by  September  1967;64  then  rejection  of  "all  deliberate  speed"  with 
an  immediate  order  to  begin  the  operation  of  a  unitary  system  except 
for  delayed  merger  of  student  bodies;65  and  finally  the  board's  zoning 
plan  held  inadequate,  with  several  specific  steps  ordered  to  correct  de- 
ficiencies, including  a  majority  to  minority  transfer  rule  with  transporta- 
tion provided,  directions  to  the  school  board  to  find  affirmatively  a 
workable  plan,  and  the  appointment  of  a  biracial  committee  to 
oversee  the  process  and  make  reports  to  the  court.66 

School  desegregation  did  not  begin  in  Mississippi  until  10  years 
after  the  Supreme  Court  decision  in  Brown.G7    Although  the  Court  had 

59H.  Kalven,  The  Negro  and  the  First  Amendment  66-67    (1966) . 

^Singleton  was  appealed  so  often  the  Court  of  Appeals  numbered  its  decisions  I, 
II,  III,  and  IV.  See  notes  63-66  infra. 

eiEvers  v.  Jackson  Mun.  Sep.  School  Dist.,  328  F.2d  408  (5th  Cir.  1964)  (later 
consolidated   into  Singleton  v.  Jackson)  . 

62 Jackson  Mun.  Sep.  School  Dist.  v.  Evers,  357  F.2di  653  (5th  Cir.  1966) ,  cert, 
denied,  384  U.S.  961    (1966)  . 

essingleton  I,  348  F.2d  729    (5th  Cir.  1965)  . 

64Singleton  II,  355  F.2d  865    (5th  Cir.  1966) . 

essingleton  III,  419  F.2d  1211    (5th  Cir.  1969) ,  cert,  denied,  396  U.S.  1032    (1970)  . 

eesingleton  IV,  426  F.2d  1364  (5th  Cir.  1970),  modified,  430  F.2d  368  (5th  Cir. 
1970) . 

67ln  September  1964  three  school  districts  were  integrated:  Biloxi  (16  children)  , 
Carthage-Leake  County  (1  child)  ,  Jackson  (39  children)  .  A  fourth  district  was  ordered 
to  integrate  (Clarksdale)  but  no  blacks  entered  the  all-white  schools.  See  Southern 
School  News,  October  1964,  at  1,  col.  2. 


350  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

ordered  an  end  to  dual  systems  of  public  education  and  had  seemingly 
placed  the  burden  of  compliance  on  individual  school  boards,68  desegre- 
gation in  Mississippi  commenced  under  court  orders  that  actually  placed 
the  burden  of  desegregation  on  the  black  parents  and  their  children.69 
Under  Mississippi's  "freedom  of  choice  plan,"  parents  had  to  choose 
affirmatively,  despite  harassment  and  possible  bodily  harm,  to  send 
their  children  to  public  schools  which  always  had  been  reserved  for 
whites. 

The  year  1964  marked  the  entry  of  the  federal  government  into  the 
desegregation  field.  Under  the  Civil  Rights  Act  of  1964,70  the  Justice 
Department  was  authorized  to  file  civil  suits  to  desegregate  public 
schools,  and  federal  agencies  were  authorized  to  withhold  money  from 
school  districts  that  had  not  taken  steps  to  end  segregation.71  Although 
by  1967  almost  all  school  districts  in  Mississippi  had  qualified  for 
federal  funds,72  the  task  of  effective  school  desegregation  had  just 
begun.  The  efforts  of  the  previous  few  years  had  definitely  outlawed 
state-supported,  racial  segregation  in  public  schools,  but  both  the  legal 
and  social  rationale  in  Brown  II73  called  for  much  more: 

School  desegregation  cases  involve  more  than  a  dispute  between 
certain  Negro  children  and  certain  schools.  If  Negroes  are  to 
ever  enter  in  the  mainstream  of  American  life,  as  school  chil- 
dren, they  must  have  equal  educational  opportunities  with 
white  children.74 

In  order  to  achieve  educational  parity,  the  Supreme  Court  called  for  the 
elimination  of  dual  school  systems. 

In  Green  v.  County  School  Board  of  New  Kent  County,75  the  Su- 
preme Court  addressed  itself  to  the  constitutionality  of  "freedom  of 
choice"  plans  which  had  the  effect  of  transferring  the  burden  of  dese- 
gregation from  school  boards  to  black  parents  and  their  children. 
While  the  Court  held  that  freedom  of  choice  plans  were  not  unconsti- 

esBrown  v.  Board  of  Educ.    (Brown  II)  ,  349  U.S.  294    (1955) . 

69Evers  v.  Jackson   Mun.  Sep.  School  Dist.,  328  F.2d  408    (5th  Cir.  1964) . 

7042  U.S.C.  §  1981  et  seq.   (1970) . 

7i/d  §  2000c-6.  General  regulations  implementing  Title  IV  of  the  Act  were 
published  by  HEW  in  December  1964  and  April  1965. 

72HEW  report  1967,  from  Southern  School  News. 

73ln  Green  v.  County  School  Bd.  of  New  Kent  County,  391  U.S.  430  (1968) ,  the 
Supreme  Court  reaffirmed  its  Brown  II  decision  that  dual  school  systems  must  be 
ended. 

74United  States  v.  Jefferson  County  Bd.  of  Educ,  380  F.2d  385,  389  (5th  Cir. 
1967) ,  cert,  denied,  389  U.S.  840    (1967) . 

75391  U.S.  430    (1968) . 


1973]  REPRESENTING  THE  UNREPRESENTED  351 

tutional  per  se,  the  Court  defined  such  plans  as  "only  a  means  to  a  con- 
stitutionally required  end."76  The  Court  had  formerly  noted  that  open- 
ing previously  "white"  schools  to  black  children  did  not  resolve  the 
constitutional  mandate  of  Brown  II,11  and  that  where  states  had  operated 
dual  school  systems,  steps  must  be  taken  to  "convert  to  a  unitary  system 
in  which  racial  discrimination  would  be  eliminated  root  and  branch."78 
The  Court  called  for  "a  plan  that  promises  realistically  to  work  now."79 
The  Fifth  Circuit  had  previously  held  that  "the  only  school  desegrega- 
tion plan  that  meets  constiutional  standards  is  one  that  works."80  The 
Supreme  Court's  ruling  in  Green  served  to  make  that  holding  both  un- 
equivocable  and  imperative. 

At  the  time  of  the  Green  decision,  most  if  not  all  of  the  school  dis- 
tricts in  Mississippi  were  more  segregated  than  New  Kent  County.81  In 
Anthony  v.  Marshall  County  Board  of  Education,*2  for  example,  the 
Court  considered  the  acceptability  of  two  freedom  of  choice  plans.  In 
one  district  only  21  out  of  1,868  blacks  were  attending  previously  all- 
white  schools.  In  the  other  district,  22  out  of  3,606  blacks  were  attend- 
ing integrated  schools.  This  compared  with  the  figures  in  Green,  where 
the  Court  noted,  that  "85%  of  Negro  children  in  the  system  still  attend 
the  all-Negro  Walkins  School.  In  other  words,  the  school  system  remains 
a  dual  system."83  The  Fifth  Circuit  remanded  the  Marshall  County  case 
to  the  district  court  for  the  adoption  of  a  more  effective  plan. 

Green  also  cut  through  many  of  the  peripheral  factors  which  previ- 
ously had  obstructed  the  court's  move  toward  more  effective  integration. 
The  City  of  Clarksdale  is  bisected  by  railroad  tracks.  Traditionally,  most 
of  the  blacks  lived  on  the  south  side  of  the  tracks.  In  Henry. v.  Clarks- 
dale School  Boards  the  defendants  had  adopted  a  geographic  zoning 
system  that  served  to  keep  the  school  district  segregated.  Although  the 
district  court  found  that  the  school  board  had  acted  in  "good  faith"  the 
Fifth  Circuit,  following  Green,  held  that  good  faith  was  only  relevant  in 
an  acceptable  desegregation  plan.85    The  Clarksdale  case  was  remanded 

76/d.  at  440. 

77349  U.S.  294   (1955) . 

78391  U.S.  at  438. 

79/d.  at  439. 

soUnited  States  v.  Jefferson  County  Bd.  of  Educ,  372  F.2d  836,  847  (5th  Cir. 
1966)  . 

siThe  statistics  are  set  forth  in  tables  in  the  court's  opinion  in  United  States  v. 
Hinds  County  School  Bd.,  417  F.2d  852,  855-56    (5th  Cir.  1969). 

82409  F.2d   1287    (5th  Cir.  1969)  . 

83391  U.S.  at  430. 

84409  F.2d  682    (5th  Cir.  1969) . 

85/d.  at  685. 


352  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

for  the  adoption  of  a  plan  that  would  actually  accomplish  the  intended 
objective. 

After  the  Court's  decision  in  Green,  the  participants  in  the  drama 
of  school  desegregation  took  on  different  roles.  In  previous  years,  the 
Justice  Department  had  provided  the  representation  for  securing  man- 
datory desegregation  in  some  Mississippi  school  districts.86  Their  man- 
power had  been  important,  if  not  decisive,  in  ending  the  pattern  of 
forced  segregation  in  Mississippi  schools.  But  times  had  changed.  First, 
the  dearth  of  counsel  that  was  evident  in  Mississippi  in  1964  had  altered 
slightly.87  Second,  the  legal  work  required  to  attack  the  various  desegre- 
gation plans  which  were  not  working  called  for  a  closer  working  rela- 
tionship between  black  community  leaders  and  their  advocates.  Follow- 
ing Green,  Mississippi  lawyers  representing  black  parents  and  children 
attempted  to  intervene  in  a  number  of  Justice  Department  desegregation 
suits. ss  When  efforts  to  intervene  were  denied,  a  number  of  plenary 
school  desegregation  suits  were  filed.  Hearings  on  the  new  suits  were 
then  incorporated  into  or  consolidated  with  the  pending  cases  so  that 
intervention  in  effect  was  achieved.89 

On  October  29,  1969,  the  Supreme  Court  in  deciding  the  Mississippi 
case  Alexander  v.  Holmes  County  Board  of  Education,90  stated: 

The  question  presented  is  one  of  paramount  importance,  in- 
volving as  it  does,  the  denial  of  fundamental  rights  to  thousands 
of  school  children,  who  are  presently  attending  Mississippi 
schools  under  segregated  conditions  contrary  to  applicable  de- 
cisions of  this  Court  .  .  .  Under  explicit  holdings  of  this  Court 
the  obligation  of  every  school  district  is  to  terminate  dual  school 
systems  at  once  and  to  operate  now  hereafter  only  unitary 
schools.91 

seBetween  1966  and  1968  the  Justice  Department  filed  approximately  40  desegre- 
gation suits  in  Mississippi. 

87North  Mississippi  Rural  Legal  Services  lawyers  started  handling  school  desegre- 
gation cases  in  its  jurisdiction.  The  first  such  action  was  Anthony  v.  Marshall  County 
School  Bd.,  409  F.2d  1287    (5th  Cir.  1969)  . 

ssTJnited  States  v.  Montgomery  County  Bd.  of  Educ,  WC  6720-K  (N.D.  Miss., 
filed  June  7,  1967) ;  United  States  v.  Greenwood  Mun.  School  Dist.,  GC  6640-K  (N.D. 
Miss.,  filed  Aug.  1,  1966)  ;  United  States  v.  Carroll  County  Bd.  of  Educ,  GC  6541 -K 
(N.D.  Miss.,  filed  Aug.  5,  1966)  ;  United  States  v.  Humphreys  County  School  Dist., 
GC  6645-S  (N.D.  Miss.,  filed  Aug.  15,  1966)  :  Petitions  to  intervene  were  filed  by 
North  Mississippi  Rural  Legal  Services  lawyers  on  the  ground  that  the  rights  of 
black  children  and  their  parents  were  being  neglected. 

s^Subsequent  appeals  in  United  States  v.  Greenwood  Mun.  School  Dist.  were 
prosecuted  by  North  Mississippi  Rural  Legal  Services  lawyers,  422  F.2d  1250  (5th 
Cir.  1970)  ,  445  F.2d  388   (5th  Cir.  1971) ,  and  460  F.2d  1205   (5th  Cir.  1972)  . 

90396  U.S.   19    (1969). 

9i/d.  at  20. 


1973]  REPRESENTING  THE  UNREPRESENTED  353 

The  Court  also  held  that  desegregation  plans  must  be  implemented  prior 
to  any  further  appeal.92  Notably,  in  Alexander  the  Justice  Department, 
for  the  first  time  in  history,  argued  against  the  immediate  implementa- 
tion of  desegregation  plans.93 

As  the  enforcement  of  the  Brown  decision  in  Mississippi  slowly 
became  an  accomplished  fact,  the  private  school  movement  became  in- 
evitable. Counsel  for  the  proponents  of  desegregation  were  then  faced 
with  the  task  of  shutting  off  public  tax  support  for  these  new  private 
segregated  academies.  Two  important  decisions  have  proscribed  the  use 
of  public  funds  for  the  support  of  the  new  schools  founded  to  escape  the 
impact  of  public  school  desegregation.   A  third  case  is  still  undecided. 

First,  in  Coffey  v.  State  Educational  Finance  Committee,9*  a  three- 
judge  federal  district  court  struck  down  Mississippi's  newly  enacted 
tuition  grant  statute.  The  act  had  called  for  grants  of  $180  (later  raised 
to  $240)  for  each  child  who  attended  a  private  elementary  or  secondary 
school.  In  the  first  school  year  after  the  statute  was  enacted,  two  new 
nonsectarian  private  schools  went  into  operation.  Both  were  located  in 
a  district  which  was  under  court  order  to  desegregate.  As  additional 
school  districts  were  ordered  desegregated,  additional  private  schools 
were  formed.  Of  the  49  regular  private  schools  in  which  students  re- 
ceived tuition  grants  during  the  1967-68  school  year,  48  had  all  white 
student  populations.95  The  court  noted  that  similar  laws  in  five  other 
states  had  been  ruled  unconstitutional.96  On  the  basis  of  those  cases 
and  the  Supreme  Court  decision  in  Griffin  v.  School  Board  of  Prince 
Edward  County,97  the  Mississippi  statute  was  declared  invalid. 

The  second  decision  was  Green  v.  Kennedy98  a  class  action  brought 
by  Mississippi  black  parents  and  students  in  the  Federal  District  Court  for 
the  District  of  Columbia  to  enjoin  the  Secretary  of  the  Treasury  and  the 
Director  of  Internal  Revenue  from  granting  tax  exempt  status  to  private 
segregated  schools  in  Mississippi.  A  preliminary  injunction,  subsequently 
made  permanent,  was  issued  enjoining  the  defendants  from  approving 
any  pending  or  future  application  for  tax  exempt  status  under  section 
501  (c)  (3)  of  the  Internal  Revenue  Code  of  1954  filed  by  any  private 
school  in  Mississippi  which  enrolls  students  in  grades   1-12  and  from 

md.  at  21. 

93/d.  at  19. 

94296  F.  Supp.  1389    (S.D.  Miss.  1969) . 

95/d.  at  1391. 

**See  id.  at  1390  n.l. 

97377  U.S.  218   (1964) . 

98309  F.  Supp.  1127    (D.D.C.  1970). 


354  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

allowing  contributions  to  any  such  schools  to  be  deducted  under  section 
170(a)  of  the  Code,  unless  they  affirmatively  determine,  pursuant  to 
directives  and  procedures  satisfactory  to  the  court,  that  the  applicant 
school  is  not  a  part  of  a  system  of  private  schools  operated  on  a  racially 
segregated  basis.  In  so  holding  the  three-judge  court  in  Washington 
relied  heavily  on  the  findings  of  fact  made  by  the  Court  in  Coffey. 

The  third  case,  Norwood  v.  Harrison,"  presently  on  appeal  to  the 
Supreme  Court,  challenges  the  validity  of  a  statute  enacted  in  1940, 
amended  in  1942,  which  provides  free  textbooks  to  all  school  children  in 
Mississippi.100  In  1972,  34  thousand  students  received  state-owned  text- 
books while  attending  the  107  all  white  nonsectarian  private  schools. 
Although  the  state  textbook  program  has  historically  maintained  a 
racially  neutral  policy  in  its  administration,  the  question  remains  to 
what  extent,  if  any,  the  state  can  provide  financial  assistance  to  white 
students  who  attend  private  schools  in  order  to  avoid  desegregated  pub- 
lic schools. 

School  desegregation  litigation  in  Mississippi  is  not  yet  completed, 
but  the  focus  has  shifted.  The  issues  now  being  contested  involve,  for 
the  most  part,  busing  of  students;  assignment  of  students  to  classes  by 
performance  on  achievement  tests;  racial  discrimination  in  the  hiring, 
discharge,  and  placement  of  faculty  and  staff;  and  student  disciplinary 
problems.101 

B.     Freedom  of  Speech  and  Assembly 

During  the  early  1960's  the  civil  rights  groups  were  subjected  to  a 
number  of  harassing  activities  designed  to  impede  their  movements  and 
thwart  their  objectives.  Local  officials  would  disrupt  demonstrations  by 
baseless  arrests  of  demonstrators  or  their  leaders.  State  court  in- 
junctions were  also  sought  to  halt  marches  and  assemblies.  Thus,  in 
order  for  the  civil  rights  movement  to  function  at  all  in  Mississippi,  it 
was  necessary  for  lawyers  to  attack  the  misapplication  of  a  variety  of 
statutes  and  ordinances  and  to  seek  federal  judicial  relief  from  state 
court  injunctions.  In  so  doing,  lawyers  and  federal  courts  in  numerous 
Mississippi  cases  have  done  much  to  protect  citizens'  fundamental  rights 
to  assemble,  protest,  speak,  and  petition  governmental  authority  for  the 

99340  F.  Supp.  1003   (N.D.  Miss.  1972) ,  prob.  juris,  noted,  409  U.S.  839   (1972) . 

iooAct  of  Feb.  16,  1940,  ch.  202,  [1940]  Gen.  Laws  Miss.  368,  as  amended,  Miss. 
Code  Ann.  §  6634  et  seq.  (1952) . 

ioiinterviews  with  Louis  Myers  and  Johnnie  Walls,  staff  attorneys,  NMRLS,  Mar. 
17  &  20,  1973. 


1973]  REPRESENTING  THE  UNREPRESENTED  355 

redress  of  grievances.  Whether  directed  to  the  legislature,102  school 
boards,  school  administrators,103  or  business  enterprises;104  whether  con- 
ducted by  adults105  or  school  children;106  or  whether  with  a  specific  ob- 
ject107 or  simply  in  spontaneous  response  to  tragedy,108  reasonable  protest 
cannot  be  stifled  either  by  the  courts109  or  by  legislative  bodies.110 

The  decisions  in  Mississippi  have  helped  define  the  limits  of  the 
right  to  assemble,  protest  and  petition.  For  example,  students  may  not 
picket  a  school  board  near  school  grounds  during  school  hours.111  Civil 
rights  groups  and  their  members  cannot  coerce  or  intimidate  would-be 
customers  of  a  store  that  is  being  boycotted.112  The  Supreme  Court  of 
Mississippi  has  found  tort  liability  in  one  such  case,113  and  the  Fifth 
Circuit  has  refused  to  enjoin  a  similar  state  court  proceeding  before  final 
judgment.114 

The  Mississippi  cases  have  established  no  new  legal  principles; 
rather,  old  and  settled  law  has  been  applied  to  Mississippi  conditions 
to  prevent  governmental  authority  from  permanently  suppressing  the 
lawful  exercise  of  first  amendment  rights.  The  temporary  suppression 
of  such  rights  is  another  matter.  Hopefully,  the  Mississippi  decisions  will 
serve  a  useful  purpose  in  the  future  as  both  a  guide  and  deterrent  to 
local  authorities  who  might  be  tempted  to  abuse  the  police  power  of  the 
state  by  temporarily  suppressing  fundamental  rights  of  free  speech  and 
assembly. 

C.     Enfranchising  the  Disenfranchised 

Lawyers  in  Mississippi  can  take  judicial  notice  that  until  recent 
enforcement  of  the  stringent  provisions  of  the  Civil  Rights  Act  of  1965, 

io2Guyot  v.  Pierce,  372  F.2d  658    (5th  Cir.   1967). 

loaMontgomery  County  Bd.  of  Educ.  v.  Shelton,  327  F.  Supp.  811  (N.D.  Miss. 
1971)  . 

lo^Machesky  v.  Bizzell,  414  F.2d  283  (5th  Cir.  1969) ,  rev'g  in  part,  288  F.  Supp. 
295    (N.D.  Miss.  1968). 

^Montgomery  County  Bd.  of  Educ.  v.  Shelton,  327  F.  Supp.  811    (N.D.  Miss.  1971)  . 

io7Machesky  v.  Bizzell,  414  F.2d  283    (5th  Cir.  1969)     (boycott  of  business)  . 

losRobinson  v.  Coopwood,  292  F.  Supp.  926  (N.D.  Miss.  1968) ,  aff'd  per  curiam, 
415  F.2d  1377    (5th  Cir.  1969)     (assassination  of  Dr.  Martin  Luther  King)  . 

io9£.g.,  Montgomery  County  Bd.  of  Educ.  v.  Shelton,  327  F.  Supp.  811  (N.D.  Miss. 
1971). 

no£.g.,  Robinson  v.  Coopwood,  292  F.  Supp.  926    (N.D.   Miss.   1968)  . 

niMontgomery  County  Bd.  of  Educ.  v.  Shelton,  327  F.  Supp.  811   (N.D.  Miss.  1971)  . 

iisHenry  v.  First  Nat'l  Bank,  444  F.2d  1300  (5th  Cir.  1971)  ,  rev'g  50  F.R.D.  251 
(N.D.   Miss.   1970)  . 

ii3Southern  Christian  Leadership  Conference  v.  A.G.  Corp.,  241  So.  2d.  619 
(Miss.  1970). 

ii^Henry  v.  First  Nat'l  Bank,  444  F.2d  1300    (5th  Cir.  1971)  . 


356  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

black  citizens  in  Mississippi  were  deliberately  denied  the  right  to  vote. 
No  citation  of  authority  is  necessary,  although  the  facts  have  been  ade- 
quately documented  in  a  number  of  federal  cases.115  The  registration 
statistics  speak  for  themselves.  In  Panola  County,  for  example,  in  Octo- 
ber 1961,  only  one  black  person  was  registered  to  vote.116  And  in  Walt- 
hall County,  in  August  1961,  although  there  were  2,490  black  people  of 
voting  age  in  the  county,  no  blacks  were  registered  to  vote.117  In  Amite 
County,  at  the  time  an  omnibus  suit  was  filed  by  the  Justice  Department 
against  the  State  of  Mississippi,  only  one  out  of  2,560  black  people  of 
voting  age  was  registered.118  The  statewide  figures  are  not  much  better. 
In  1954  only  about  4.4  percent  of  blacks  of  voting  age  in  Mississippi 
were  registered.119 

The  methods  employed  by  Mississippi  whites  to  keep  black  people 
from  voting  have  been  as  ingenious  and  persistent  as  the  mind  of  man 
could  possibly  imagine.  The  various  constitutional  provisions,  statutes, 
and  customs  have  been  adequately  described  in  other  articles  and  need 
not  be  repeated  here,  except  to  note  that  the  objective  was  effectively 
accomplished  through  a  sophisticated  combination  of  devices:  all 
white  primaries,120  re-registration,121  understanding  and  interpretation 
tests,122  an  application  form  test,123  a  citizenship  test,124  ad  hoc  rules  of 
local  registrars,125  and  a  literacy  requirement.126 

A  succession  of  federal  statutes  —  the  Civil  Rights  Acts  of  1957, 
1960,  and  1964  —  had  only  a  limited  impact  in  securing  the  right  to  vote 
for  black  citizens  in  Mississippi.127 

usUnited  States  v.  Duke,  332  F.2d  759  (5th  Cir.  1964) ;  United  States  v.  Missis- 
sippi, 229  F.  Supp.  925  (S.D.  Miss.  1964).  An  excellent  history  of  the  racial  discrimina- 
tion process  in  Mississippi's  voting  procedure  is  contained  in  Note,  Federal  Protection 
of  Negro  Voting  Rights,  51  Va.  L.  Rev.  1052,  1079-91    (1965)  . 

H6332  F.2d  759    (5th  Cir.  1964) . 

H7229  F.  Supp.  925    (S.D.  Miss.   1964). 

usUnited  States  v.   Mississippi,   380  U.S.    128    (1965)  . 

ii9/d. 

^Invalidated  in  Smith  v.  Allwright,  321  U.S.  649  (1944) .  In  1947  the  legislature 
sought  to  accomplish  the  same  results  by  enacting  a  statute  requiring  voters  in  a 
primary  to  be  in  accord  with  the  principles  of  the  party  holding  the  primary.  Act  of 
March  15,  1947,  ch.  17,  [1947]  Gen.  Laws  Miss.  904. 

isiNote,  Federal  Protection  of  Negro  Voting  Rights,  supra  note  115,  at  1079. 

122/d.  at  1084. 

123/d.  at  1087. 

124/d.  at  1088. 

125/d.  at  1090. 

126/d.  at  1091. 

i27McCarty  &  Stevenson,  The  Voting  Rights  Act  of  1965:  An  Evaluation,  3  Harv. 
Civ.  Rights-Civ.  Lib.  L.  Rev.  357,  358-59  (1968) .  See  also  Derfner,  Multi-Member  Dis- 
tricts and  Black  Voters,  2  Black  LJ.  120  (1970) . 


1973]  REPRESENTING  THE  UNREPRESENTED  357 

Despite  the  earnest  efforts  of  the  Justice  Department,  and  of 
many  federal  judges,  these  new  laws  have  done  little  to  cure 
the  problem  of  voting  discrimination.  According  to  estimates 
by  the  attorney  general  during  hearings  on  the  act,  registration 
of  voting  age  Negroes  ...  in  Mississippi  .  .  .  increased  only  from 
4.4%  to  6.4%  between  1954  and  1964.128 

Before  the  pre- 1965  voting  rights  acts  could  be  used  effectively,  "[t]hey 
had  to  undergo  a  trial  by  judicial  ordeal  in  the  Fifth  Circuit  and 
the  District  Courts  of  that  Circuit."129  A  total  of  71  suits  were  filed 
under  the  provisions  of  these  statutes.130 

If  the  cases  on  school  desegregation  illustrate  the  effectiveness  of 
litigation  as  a  means  of  effecting  social  change,  the  voting  rights  cases 
under  the  pre- 1965  civil  rights  acts  illustrate  the  limitations  of  using  the 
judicial  process  to  accomplish  that  purpose.  The  right  to  vote  is  so 
fundamental,  and  the  importance  of  the  ballot  as  a  weapon  to  force 
needed  change  so  obvious,  one  must  wonder  why  so  little  was  accom- 
plished in  this  area  by  the  earlier  statutes  and  the  decisions  construing 
them.  Undoubtedly  there  is  no  single  reason.  A  variety  of  factors  com- 
bined to  make  progress  slow  and  tedious,  inter  alia:  the  absence  of  any 
presumptions  in  favor  of  the  government  or  disenfranchised  blacks,131 
the  difficulty  of  locating  and  colating  records,132  unsympathetic  federal 
district  courts  in  the  Fifth  Circuit  (with  some  exceptions)  ,133  and  the 
ingenuity  of  state  officials  in  devising  new  discriminatory  procedures 
when  existing  ones  were  declared  void.134 

In  South  Carolina  v.  Katzenbach,135  the  Court  said: 

The  previous  legislation  has  proved  ineffective  for  a  number 
of  reasons.  Voting  suits  are  unusually  onerous  to  prepare,  some- 
times requiring  as  many  as  6,000  man  hours  spent  combing 
through  registration  records  in  preparation  for  trial.  Litigation 
has  been  exceedingly  slow,  in  part  because  of  the  ample  oppor- 
tunities for  delay  afforded  voting  officials  and  others  involved 
in  the  proceedings.  Even  when  favorable  decisions  have  finally 
been  obtained,  some  of  the  States  affected  have  merely  switched 
to  discriminatory  devices  not  covered  by  the  federal  decrees  or 
have  enacted  difficult  new  tests  designed  to  prolong  the  existing 

izssouth  Carolina  v.  Katzenbach,  383   U.S.  301,  313    (1966). 

i29Note,  Federal  Protection  of  Negro  Voting  Rights,  supra  note  115,  at  1100. 

i30Derfner,  supra  note  127. 

isiNote,  Federal  Protection  of  Negro  Voting  Rights,  supra  note  115,  at  1100. 

i32/d.  at  1101. 

133/rf. 

134/d.  at   1082. 

135383  U.S.  301    (1966)  . 


358  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

disparity  between  white  and  negro  registration.  Alternatively, 
certain  local  officials  have  defied  and  evaded  court  orders  or 
have  simply  closed  their  registration  offices  to  freeze  the  voting 
rolls.  The  provision  of  the  1960  law  authorizing  registration  by 
federal  officers  has  had  little  impact  on  local  maladministration 
because  of  its  procedural  complexities.136 

The  Court's  explanation  of  the  ineffectiveness  of  both  the  pre- 1965 
statutes  and  the  lawsuits  brought  to  enforce  them,  however,  does  not 
provide  a  complete  explanation  of  the  lack  of  progress.  In  addition  to 
the  reasons  cited  by  the  courts  and  the  writers  of  various  law  review 
articles  on  the  subject,  apparently  less  attention  was  given  to  voting 
rights  litigation  by  civil  rights  lawyers  during  the  early  days  of  the  civil 
rights  movement.  Or  to  express  it  from  the  standpoint  of  the  client 
groups,  civil  rights  organizations  apparently  elected  to  leave  the  task  of 
enforcing  voting  rights  to  the  federal  government,137  rather  than  pursu- 
ing a  vigorous  program  of  litigation  on  their  own. 

In  any  event,  the  history  of  voting  rights  law  reform,  except  for  the 
14th  amendment  cases,  is  essentially  legislative,  not  judicial.  Recent 
cases  have  given  the  statutes  a  broad  interpretation  and  application,  but 
federal  legislation  was  the  force  that  finally  burst  the  dam  of  systematic 
disenfranchisement  of  blacks  in  the  deep  South.  The  civil  rights  groups 
were  undoubtedly  the  force  behind  this  legislation.  By  putting  pressure 
on  both  the  Justice  Department  and  the  Congress  these  groups  secured 
the  enactment  of  the  increasingly  stringent  legislation. 

The  1965  act  was  a  response  to:  (1)  the  frustration  experienced  by 
the  Justice  Department  lawyers  in  their  attempts  to  enforce  earlier  stat- 
utes; (2)  the  creativity  of  Southern  officials  in  designing  new  ways  to 
discriminate;  and  (3)  to  the  difficulties  experienced  by  Justice  Depart- 
ment lawyers  in  the  federal  district  courts  in  the  Fifth  Circuit.138  The 
new  Act  attacked  the  problem  of  systematic  disenfranchisement  in  the 
applicable  Southern  states  with  a  variety  of  sweeping  and  stringent  pro- 
visions. Registration  provisions  in  the  affected  states  were  automatically 
whisked  away.139  The  burden  of  proof  was  shifted  from  the  federal 
government  to  the  states:  the  states  had  to  show  that  there  was  no  dis- 
crimination. With  the  existing  state  registration  requirements  elimi- 
nated, no  new  voting  requirements  could  be  adopted  until  they  had 
been  submitted  to  either  the  Attorney  General  of  the  United  States  or  to 

136/d.  at  314. 

i37The  71  suits  described  by  Derfner,  supra  note  127,  were  all  filed  by  the  Justice 
Department. 

issDerfner,  supra  note  127.  See  generally  Note,  Federal  Protection  of  Negro  Voting 
Rights,  supra  note  115,  at  1195. 

13942  U.S.C.  §  1973  (b)   (1970)  . 


1973]  REPRESENTING  THE  UNREPRESENTED  359 

the  United  States  District  Court  for  the  District  of  Columbia  for  a 
determination  of  whether  the  enactment  would  discriminate  against 
racial  minorities.140  The  Act  also  provided  for  the  appointment  of  fed- 
eral examiners  who  were  directed  to  register  people  who  had  been  de- 
nied registration  in  the  past.141  The  appointment  of  federal  observers 
to  attend  polling  places  to  determine  whether  eligible  voters  were  being 
permitted  to  vote  and  to  ensure  that  votes  were  being  counted 
properly  was  also  authorized.142  Private  action  to  intimidate  voters  was 
prohibited  with  both  criminal  sanctions  and  civil  remedies  for  vio- 
lations.143 

Following  the  passage  of  the  Voting  Rights  Act  of  1965,  civil  rights 
lawyers  in  Mississippi  began  to  enforce  its  provisions  through  litigation 
on  behalf  of  private  individuals.  Under  the  title  of  Allen  v.  State  Board 
of  Elections,1*4  one  Virginia  case  and  three  Mississippi  cases  went  before 
the  Supreme  Court  to  determine  if  changes  in  state  election  laws  came 
within  the  purview  of  section  5  of  the  Act.  Fairley  v.  Patterson  in- 
volved a  1966  amendment  to  section  2870  of  the  Mississippi  Code  which 
authorized  the  board  of  supervisors  of  each  county  to  change  from  beat 
or  district  elections  to  at-large  elections.  Bunton  v.  Patterson  concerned 
a  1966  amendment  to  section  6271-08  of  the  Mississippi  Code,  which 
provided  that  in  11  specified  counties  the  county  superintendent  of 
education  should  be  appointed  by  the  board  of  education.  Prior  to  this 
amendment  the  counties  in  question  had  the  option  of  electing  or 
appointing  the  superintendent  of  education.  Whitley  v.  Williams  chal- 
lenged a  1966  amendment  to  section  3260  of  the  Mississippi  Code  which 
altered  the  requirements  for  independent  candidates  running  in  general 
elections.  The  amendment  made  four  revisions,  all  of  which  were  de- 
signed to  complicate  the  entry  of  independent  candidates  in  general 
elections. 

In  all  three  cases,  a  three-judge  district  court  ruled  that  the  amend- 
ments to  the  Mississippi  Code  did  not  come  within  the  purview  of  and 
were  not  covered  by  section  5  of  the  1965  act.145   The  plaintiffs  brought 

"o/d.  §  1973  (c) . 

141/d,  §   1973  (d)  (e) . 

142/d.  §   1973(f). 

143/d.  §  1973  (j) . 

144393  U.S.  544,  552  (1969).  This  case  involved  the  consolidation  of  several  cases 
on  direct  appeal  from  district  courts.  The  Mississippi  cases  were  Fairley  v.  Patterson, 
282  F.  Supp.  164  (S.D.  Miss.  1967)  ;  Bunton  v.  Patterson,  281  F.  Supp.  918  (S.D.  Miss. 
1967) ;  and  Whitley  v.  Johnson,  260  F.  Supp.  630  (S.D.  Miss.  1966) . 

i45Fairley  v.  Patterson,  282  F.  Supp.  164  (S.D.  Miss.  1967)  ;  Bunton  v.  Patterson, 
281  F.  Supp.  918  (S.D.  Miss.  1967) ;  Whitley  v.  Johnson,  260  F.  Supp.  630  (S.D.  Miss. 
1966). 


360  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

direct  appeals  to  the  Supreme  Court,  which  held  that  the  statutory 
amendments  in  all  three  Mississippi  cases  did  come  within  the  purview 
of  section  5  and  would  have  to  be  subjected  to  federal  scrutiny  before 
they  could  be  enforced.  The  Court  refused,  however,  to  order  new  elec- 
tions under  the  pre-amendment  laws.  The  Court  gave  only  prospective 
effect  to  its  decision,  and  the  Mississippi  cases  were  reversed  and  re- 
manded to  the  district  court  with  instructions  to  issue  injunctions  re- 
straining the  further  enforcement  of  the  enactments  until  such  time  as 
the  states  adequately  demonstrated  compliance  with  section  5.  When  the 
state  finally  submitted  the  amendments  to  the  Attorney  General  for 
approval,  all  of  the  proposed  changes  were  denied. 

The  decision  in  Allen  was  important  for  a  number  of  reasons.  It 
established  a  broad  interpretation  of  the  federal  scrutiny  requirements 
of  section  5.  Mississippi  was  put  on  notice  that  all  changes  in  election 
procedures  would  have  to  be  examined  by  federal  authorities.  Although 
the  results  cannot  be  documented,  attorneys  for  the  plaintiffs  in  the 
three  Mississippi  cases  consolidated  in  Allen  are  convinced  that  the  de- 
cision has  served  as  a  strong  deterrent  to  the  enactment  of  new  discrimi- 
natory legislation.  Fairley  was  important  because  it  helped  stop  the 
movement  toward  at-large  elections  in  Mississippi.  The  decision  in 
Bunion  has  foreclosed  the  appointment  of  superintendents  of  education 
in  counties  where  the  election  of  a  black  superintendent  is  a  possibility. 
The  decision  in  Whitley  also  had  an  important  effect,  since  a  number 
of  blacks  in  Mississippi  have  gained  public  office  by  running  as  in- 
dependents. 

In  Perkins  v.  Matthews,145  voters  and  candidates  instituted  an  action 
in  the  United  States  District  Court  for  the  Southern  District  of  Missis- 
sippi to  enjoin  the  1969  city  elections  in  Canton  on  the  ground  that  the 
city  sought  to  enforce  certain  changes  in  voting  procedures  which  had 
not  been  first  submitted  for  federal  approval  under  section  5.  The 
changes  were:  (1)  in  locations  of  polling  places,  (2)  in  municipal  boun- 
daries through  annexations  of  adjacent  areas  which  enlarged  the  numbers 
of  eligible  voters,  and  (3)  from  ward  to  at-large  election  of  aldermen. 
A  three-judge  district  court  dismissed  the  complaint  on  the  ground  that 
the  challenged  changes  did  not  have  a  discriminatory  purpose  or  effect.147 
The  elections  were  held  with  the  changes  in  effect.148  On  direct  appeal, 
the  Supreme  Court  held  that  the  district  court  should  have  limited  its 
inquiry  to  a  determination  of  whether  the  changes,  without  regard  to 
their  effect,  were  covered  by  section  5  and  therefore  must  be  submitted 

i«400  U.S.  379    (1971)  . 

i47Perkins  v.  Matthews,  301  F.  Supp.  565   (S.D.  Miss.  1969) . 

148/d. 


1973]  REPRESENTING  THE  UNREPRESENTED  361 

for  Federal  approval.  The  Court  further  held  that  any  change  in  election 
procedures,  no  matter  how  small,  was  subject  to  section  5  scrutiny,  thus 
changes  in  location  of  polling  places,  annexations,  and  changes  to  at- 
large  elections  were  all  covered.  Once  again,  however,  the  Court  refused 
to  order  new  elections  and  remanded  the  case  to  the  district  court  for 
initial  determination  of  an  appropriate  remedy. 

In  Perkins  the  plaintiffs  won  the  battle,  but  lost  the  war  —  at  least 
so  far.  On  remand  the  district  Court  ordered  new  elections  only  for  two 
alderman  posts.  The  changes  in  location  of  polling  places  and  the  an- 
nexations were  held  not  to  have  affected  the  outcome  of  the  other 
elections.  Moreover,  because  of  the  delay  the  defendants  were  able  to 
submit  the  changes  to  the  Attorney  General  for  approval;  the  approval 
was  secured,  and  the  new  elections  were  held  at  large.  No  blacks  both- 
ered to  qualify  because  they  knew  they  could  not  win.149  The  approval 
of  the  Attorney  General,  however,  is  presently  being  challenged  in  the 
Federal  District  Court  for  the  District  of  Columbia. 

Evers  v.  State  Board  of  Election  Commissioners150  was  a  class  action 
suit  for  declaratory  and  injunctive  relief  against  the  enforcement  of 
Mississippi's  "open  primary"  law  enacted  in  1970.  The  State  of  Missis- 
sippi submitted  the  new  legislation  to  the  United  States  Attorney  Gen- 
eral under  section  5,  but  he  refused  to  rule  on  the  question,  taking  the 
position  that  he  did  not  have  time  to  make  a  decision  on  the  discrimina- 
tory impact  of  the  new  legislation  within  the  requisite  length  of  time; 
that  in  view  of  the  circumstances  the  Attorney  General  would  neither 
approve  nor  disapprove  of  the  legislation  and  suggested  that  any  person 
"interested  in  or  aggrieved  by  this  legislation  has  an  available  oppor- 
tunity to  seek  judicial  relief."  A  three-judge  district  court  held  that  the 
legislation  in  question  had  not  been  subject  to  the  requisite  federal 
scrutiny  under  section  5,  and  an  injunction  was  issued  against  the  de- 
fendants restraining  any  enforcement  of  the  new  legislation.  Thus,  the 
general  elections  then  pending  were  required  to  be  held  and  conducted 
under  state  laws  which  were  in  force  on  November  1,  1964.151  A  direct 
appeal  by  the  state  was  dismissed  for  failure  to  docket  the  case  within 
the  time  prescribed  by  Rule  13(1)  of  the  Court.152  The  effect  of  this 
litigation  was  to  leave  the  open  primary  law  "in  a  state  of  suspended 
animation."153 

i49lnterview  with  George  P.  Taylor  former  chief  counsel,  LCCRUL,  Jackson,  Miss., 
March  21,  1973. 

150327  F.  Supp.  640    (S.D.  Miss.  1971)  ,  appeal  dismissed,  405  U.S.  1001    (1972)  . 

isi/d. 

152405  U.S.  1001    (1972)  . 

153327   F.  Supp.  640,  644    (S.D.   Miss.   1971)  . 


562  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Evers  had  ramifications  over  and  beyond  blocking  the  enforcement 
of  the  open  primary  law.  The  refusal  of  the  Attorney  General  to  rule 
on  the  state's  request  for  approval  caused  repercussions  which  ultimately 
resulted  in  the  promulgation  of  new  and  better  procedures  in  the  Attor- 
ney General's  office  for  responding  to  submissions  under  section  5.154 

Not  all  of  the  voting  rights  cases  in  Mississippi  have  been  based  on 
congressional  legislation.  Indeed,  as  Derfner  asserts,  "the  single  most 
useful  protection  against  voting  discrimination  today  is  the  Equal  Pro- 
tection Clause  of  the  Fourteenth  Amendment."155  The  equal  protection 
clause  was  the  basis  for  invalidating  Mississippi's  durational  residency 
requirements  for  both  voting  and  registration. 

Ferguson  v.  Williams1™  was  precipitated  by  the  ratification  of  the 
26th  amendment,  which  took  place  in  Mississippi  at  a  time  when  18-  to 
20-year-old  voters  were  unable  to  comply  with  Mississippi's  4-month 
registration  requirement  in  time  to  vote  in  the  upcoming  general  elec- 
tion. The  suit  challenged  the  4-month  registration  requirement  on  the 
ground  that  it  was  violative  of  the  equal  protection  clause  of  the  14th 
amendment.  A  three-judge  district  court  applying  the  rational  relation 
standard  for  equal  protection  review  held  that  the  4-month  registration 
deadline  did  not  violate  the  equal  protection  clause.157  On  direct  appeal, 
the  Supreme  Court  reversed  in  a  memorandum  decision158  ordering  the 
district  court  to  reconsider  the  case  in  the  light  of  the  Court's  decision 
in  Dunn  v.  Blumstein,159  which  held  Tennessee's  durational  residency 
requirement  for  voting  unconstitutional.  In  Dunn,  the  Court  held  that 
a  durational  residency  requirement  is  valid  only  where  "necessary  to 
promote  a  compelling  state  interest."160  On  remand,  the  district  court 
applied  the  compelling  state  interest  test,  holding  that  the  4-month 
residency  requirement  was  unreasonable  and  that  a  period  of  30  days 
would  meet  the  constitutional  test.161 

A  case  brought  shortly  after  Ferguson  was  Graham  v.  Waller,162 
which  invalidated,  also  under  the  equal  protection  clause,  the  state's 
constitutional  and  statutory  requirement  that  to  be  a  qualified  elector,  a 
person  must  reside  1  year  in  the  state,  1  year  in  the  county,  and  6  months 

i54interview  with  Frank  Parker,  Lawyers  Committee  for  Civil  Rights  Under  Law, 
Jackson,  Miss.,  March  23,  1973. 
i55Derfner,  supra  note  127. 
156343  F.  Supp.  654   (N.D.  Miss.  1972) . 
157330  F.  Supp.  1012    (N.D.  Miss.  1971). 
158405  U.S.  1036   (1972) . 
159405  U.S.  330    (1972). 
160405  U.S.  at  337. 

leiFerguson  v.  Williams,  343  F.  Supp.  654    (N.D.  Miss.   1972)  . 
162343  F.  Supp.   1    (S.D.  Miss.  1972)  . 


1973]  REPRESENTING  THE  UNREPRESENTED  363 

in  the  precinct  or  municipality.  Following  the  Dunn  rationale,  the  dis- 
trict court  found  that  a  30-day  residency  requirement  in  the  state,  coun- 
ty, and  precinct  or  municipality  satisfied  the  compelling  state  interest  for 
establishing  bona  fide  residence  for  voting.  In  Ferguson,  which  on  re- 
mand was  decided  after  Graham,  it  was  noted  that  the  30-day  residency 
requirement  for  voting  does  not  have  to  be  satisfied  before  one  may 
register  to  vote  "for  any  person  otherwise  qualified  may  at  any  time 
register  if  he  shall  meet  the  residency  requirement  by  the  date  of  the 
election,  although  he  may  not  do  so  at  the  date  of  registration."163 

As  important  as  registration  is  for  minority  groups,  the  question  of 
concentration  versus  dilution  of  their  vote  is  equally  important.  When 
in  the  minority  within  a  given  jurisdiction,  the  blacks'  ability  to  par- 
ticipate effectively  in  the  decision-making  process  depends  entirely  upon 
their  ability  to  keep  their  votes  from  being  diluted.  The  problem  of 
county  redisricting  is  considered  in  the  article  by  Frank  Parker 
elsewhere  in  this  issue.  Legislative  and  congressional  reapportionment 
has  been,  and  still  is,  the  subject  of  a  career  lawsuit  for  a  number  of 
civil  rights  lawyers  in  Mississippi  under  the  style  of  Conner  v.  Johnson.164 
The  case  has  resulted  in  court-ordered  legislative  reapportionment  plans 
for  both  the  1967  and  1971  elections,  and  the  struggle  still  continues. 

In  the  first  installment  of  Conner,  filed  in  October  1965,  a  three- 
judge  district  court  held  that  the  then-existing  apportionment  of  both 
houses  of  the  Mississippi  Legislature  was  violative  of  the  equal  protec- 
tion clause  of  the  14th  amendment,  and  that  the  seats  in  both  houses  of 
a  bicameral  state  legislature  must  be  apportioned  substantially  on  a 
population  basis.165  The  court  declared  the  applicable  sections  of  the 
Mississippi  constitution166  and  the  Mississippi  Code167  to  be  unconstitu- 
tional and  invalid  for  all  future  state  legislative  elections.  The  court 
took  the  position,  however,  that  legislative  reapportionment  is  primarily 
the  responsibility  of  the  legislature  and  that  the  court  should  n*t  inter- 
fere with  that  process  unless  absolutely  necessary.  The  court  therefore 
directed  the  Mississippi  Legislature  to  reapportion  itself  before  Decem- 
ber 1,  1966,  but  retained  jurisdiction  in  the  event  that  a  constitutional 

i63Ferguson  v.  Williams,  343  F.  Supp.  654,  657    (N.D.  Miss.  1972)  . 

164956  F.  Supp.  962  (1966)  ,  modified,  265  F.  Supp.  492  (1967)  ,  decision  on  an- 
other issue,  279  F.  Supp.  619  (1966)  (Congressional  reapportionment)  ,  aff'd  mem., 
386  U.S.  483  (1967)  .  The  district  court  retained  jurisdiction  to  determine  validity 
of  the  1971  reapportionment  plan.  330  F.  Supp.  506  (1971) ,  stay  entered,  402  U.S. 
690  (1971)  ,  judgment  vacated,  404  U.S.  549   (1971)  ,  on  remand,  330  F.  Supp.  521    (1971)  . 

165256  F.  Supp.  962    (1966) . 

i66Miss.  Const,  art.  13,  §§  254-55. 

i67Miss.  Code  Ann.  §§  3326-27   (1956)    (which  have  since  been  amended) . 


364  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

reapportionment  plan  was  not  adopted  by  the  legislature  within  the 
specified  time  limit. 

The  next  installment  of  Conner  transpired  after  a  special  session 
of  the  legislature  had  adopted  a  new  reapportionment  plan  to  meet  the 
court's  December  1,  1966  deadline.  After  examining  the  legislature's  re- 
apportionment plan  in  light  of  Swann  v.  Adams,168  the  court  found  the 
plan  unconstitutional  on  its  face.  The  court  then  entered  its  own  plan 
for  the  reapportionment  of  the  Mississippi  Legislature,169  and  the  1967 
elections  were  held  in  accordance  with  the  court-ordered  plan. 

In  their  original  bill  of  complaint  the  plaintiffs  in  Conner  had  also 
sued  for  congressional  reapportionment  of  Mississippi  under  the  Supreme 
Court's  one-man,  one-vote  rule,  but  the  hearing  on  the  issue  of  con- 
gressional redistricting  was  delayed  until  September  1966.  Between  the 
original  filing  of  the  complaint  and  the  date  of  the  hearing,  the  legisla- 
ture provided  for  reapportionment  of  the  five  congressioial  districts.170 
The  plaintiffs  contended  that  although  the  new  congressional  redistrict- 
ing plan  divided  the  state  into  substantially  equal  districts  from  the 
standpoint  of  population  alone,  the  district  lines  actually  had  been 
gerrymandered  in  such  a  manner  as  to  make  it  impossible  for  a  black 
congressman  in  Mississippi  to  be  elected  for  at  least  10  years.  Plaintiffs' 
objections  were  overruled  by  the  court,  and  the  congressional  redistrict- 
ing plan  adopted  by  the  legislature  was  approved.171  On  direct  appeal, 
the  congressional  reapportionment  portion  of  Conner  was  affirmed  by 
the  Supreme  Court  in  a  memorandum  decision.172 

Conner  emerged  again  in  May  1971,  after  the  Mississippi  Legislature 
had  again  attempted  to  reapportion  itself,  this  time  following  the  1970 
census.  In  its  regular  1971  session,  the  legislature  adopted  a  new  re- 
apportionment plan  for  use  in  the  quadrennial  elections  of  1971.173 
Once  again,  however,  the  legislature  failed  to  comply  with  the  one-man, 
one-vote  rule.  The  court  found  that  in  the  senate  alone  the  variances 
from  the  norm  ranged  from  11.60  percent  underrepresentation  to  14.26 
percent  overrepresentation,  and  again  drafted  and  ordered  its  own  re- 
apportionment plan.  In  so  doing,  however,  the  court  sanctioned  the 
dilution  of  black  votes  by  refusing  to  order  the  redistricting  of  multi- 
member districts.  The  court  noted  that  for  the  three  single-county  dis- 
tricts with  four  or  more  representatives,  single-member  districting  plans 

168385  U.S.  440   (1967) . 

169265  F.  Supp.  492    (1967) . 

i70Act  of  April  7,  1966,  ch.  616,  [1966]  Gen.  Laws  Miss.  1251. 

171279  F.  Supp.  619    (1966) . 

172386  U.S.  483    (1967) . 

i73Act  of  Mar.  23,  1971,  ch.  394,  [1971]  Gen.  Laws  Miss.  407. 


1973]  REPRESENTING  THE  UNREPRESENTED  365 

would  be  preferable,  but  held  that  it  did  not  have  sufficient  time  to 
appoint  a  special  master  to  take  testimony  and  to  make  findings  as  to 
whether  the  more  populous  counties  might  be  divided  into  districts  of 
substantially  equal  population  in  time  for  the  1971  elections.174  Plaintiffs 
applied  for  and  secured  a  stay  by  the  United  States  Supreme  Court  for 
the  portion  of  the  order  refusing  to  redistrict  Hinds  County.175  The 
Court  instructed  the  district  court,  absent  insurmountable  difficulties, 
to  devise  and  put  into  effect  a  single-member  district  plan  for  Hinds 
County  by  June  14,  1971.  On  remand  of  the  stay  order,  however,  the 
district  court  found  "insurmountable  difficulties."176  The  1971  elections 
for  members  of  the  legislature  in  Hinds  County  were  held  at-large. 
On  appeal  on  the  merits  sub.  nom.  Conner  v.  Williams,177  the  Supreme 
Court  vacated  the  judgment  and  remanded  the  case  for  further  proceed- 
ings. The  Court  refused,  however,  to  invalidate  the  1971  elections  even 
though  it  found  that  the  district  court's  plan  "does  not  precisely  square 
with  Fourteenth  Amendment  requirements."178  In  its  opinion  the  Court 
noted  the  announced  intention  of  the  district  court  to  appoint  a  special 
master  to  accomplish  the  redistricting  of  Hinds,  Harrison,  and  Jackson 
Counties,  and  the  Court  encouraged  the  prompt  completion  of  the  re- 
districting  of  those  counties.  On  remand,  however,  the  district  court 
delayed  taking  any  action  until  January  1973,  when  the  plaintiffs  filed 
a  motion  for  the  appointment  of  a  special  master  to  develop  a  plan  for 
redistricting  the  multi-member  districts,  whereupon  an  order  was  entered 
by  the  court  deferring  action  on  the  motion  until  the  legislature 
had  a  chance  to  act.  In  February,  the  legislature  adopted  a  plan  sub- 
stantially similar  to  the  one  ordered  by  the  district  court  in  1971,179  in 
spite  of  the  finding  by  the  Supreme  Court  that  it  did  not  meet  con- 
stitutional standards.  The  plaintiffs  thereupon  filed  objections  to  the 
legislature's  new  plan,180  and  the  litigation  promises  to  continue  for 
another  8  years. 

D.     Administration  of  Justice 
1.     Racial  Discrimination  in  Jury  Selection 
Since  Mississippi  jury  venires  traditionally  have  been  drawn  from  voter 

174330  F.  Supp.  506    (1971)  . 

175402   U.S.  690    (1971)  . 

176330  F.  Supp.  521    (1971)  . 

177404  U.S.  549  (1972)  . 

i73/d.  at  550. 

i79Conner  v.  Johnson,  330  F.  Supp.  506  (1971) .  See  H.B.  1389,  Miss.  Legis.,  1973 
Sess. 

isointerview  with  Frank  R.  Parker,  Lawyers  Committee  for  Civil  Rights  Under 
Law,  Jackson,  Miss.,  March  23,  1973. 


366  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

registration  rolls,181  one  of  the  unhappy  corollaries  of  minority  disen- 
franchisement  from  the  political  process  has  been  their  exclusion  from 
the  judicial  process  as  well.  Prior  to  the  mid-1960's,  blacks  participated 
in  Mississippi's  criminal  judicial  process  only  as  defendants,  if  that 
may  be  called  participation.  Due  in  part  to  the  segregation  of  both 
of  the  state's  law  schools,  there  were  only  three  black  lawyers  and  no 
black  judges.  There  were  no  black  law  enforcement  officers,  no  black 
correctional  personnel,  no  black  judicial  personnel,  and  no  black 
jurors.182  There  were  only  black  defendants. 

The  Mississippi  Supreme  Court  found  in  1965  that  "[s]ince  1880  it  has 
been  settled  law  that  systematic  and  discriminatory  exclusion  of  Negroes 
from  jury  service  violates  the  fourteenth  amendment  of  the  United  States 
Constitution."183  Yet,  the  "settled  law"  recognized  in  Harper  v.  State,184 
had  not,  prior  to  1965,  begun  to  settle  in  Mississippi.  Since  systematic 
exclusion  recently  has  been  held  to  violate  the  rights  of  white  as  well 
as  black  defendants,185  the  thought  that  for  over  90  years  the  criminal 
courts  of  Mississippi  have  been  "tribunals  that  fail  to  satisfy  the 
elementary  requirements  of  due  process,  and  neither  [their]  indict- 
mentfs]  nor  convictionfs]  can  stand"186  is  a  sobering  one.  The  right  of 
minority  defendants  to  non-exclusionary  grand  and  petit  juries  was, 
with  extremely  rare  exceptions,187  simply  not  asserted  by  white  defense 
attorneys  in  Mississippi.  The  decision  by  the  United  States  Supreme 


isiMiss.  Code  Ann.  §  1766  (Supp.  1973) ,  provides  that  supervisors  can  use  voter 
registration  rolls  as  a  "guide"  in  drawing  jury  venires. 

i82Se<?  Patton  v.  Mississippi,  332  U.S.  463,  469  (1947) ;  United  States  ex  rel.  Goldsby 
v.  Harpole,  263  F.2d  71    (5th  Cir.  1959)  . 

issHarper  v.  State,  251  Miss.  699,  706,  171  So.  2d  129,  132  (1965)  .  See  also  18  U.S.C. 
§  243  (1970)  (originally  enacted  as  Civil  Rights  Act  of  1875,  ch.  114,  §  4,  18  Stat.  336) , 
making  it  a  crime  to  "exclude  or  fail  to  summon"  a  qualified  citizen  for  jury  duty 
on  account  of  his  race. 

184251  Miss.  699,  171  So.  2d  129  (1965) . 

i85Peters  v.  Kiff,  40  U.S.L.W.  4819  (U.S.  June  22,  1972)  . 

ise/d.  at  4823. 

i8?United  States  ex  rel.  Goldsby  v.  Harpole,  263  F.2d  71  (5th  Cir.  1959)  in  which  a 
black  lawyer  from  Chicago  took  over  the  case  on  appeal  after  the  local  white  lawyer 
employed  by  the  defendant's  family  had  failed  to  raise  the  jury  issue  at  trial  and  had 
failed  to  advise  his  client  of  the  right  to  do  so;  Gordon  v.  State,  243  Miss.  750,  140 
So.  2d  88  (1962) ,  in  which  a  white  lawyer  was  successful  in  asserting  jury  exclusion 
in  this  appeal,  but  subsequently,  on  remand,  failed  to  raise  the  issue  in  the  second 
trial.  A  black  lawyer,  one  of  Mississippi's  first,  took  over  on  appeal  and  successfully 
asserted  jury  exclusion  in  Gordon  v.  Breazeale,  246  F.  Supp.  2  (N.D.  Miss.  1965)  ; 
Seay  v.  State,  212  Miss.  712,  55  So.  2d  430  (1951) ;  Patton  v.  State,  207  Miss.  120,  40  So. 
2d  592  (1949)  ;  McGee  v.  State,  203  Miss.  592,  33  So.  2d  843  (1948) ;  Farrow  v.  State, 
91  Miss.  509,  45  So.  619  (1908) . 


1973]  REPRESENTING  THE  UNREPRESENTED  367 

Court  in  a  1947  Mississippi  case  (argued  by  Thurgood  Marshall)  seemed 
to  be  almost  without  effect  in  Mississippi,  in  spite  of  its  very  clear 
language: 

When  a  jury  selection  plan,  whatever  it  is,  operates  in  such  a 
way  as  always  to  result  in  the  consistent  and  long-continued  ex- 
clusion of  any  representative  at  all  from  a  large  group  of  Neg- 
roes, or  any  other  racial  group,  indictments  and  verdicts  returned 
against  them  .  .  .  cannot  stand. 


188 


This  ethical  blot  on  the  organized  bar  was  so  well-known  as  to  be 
judicially  noticed  by  the  Fifth  Circuit  in  1959: 

As  Judges  of  a  Circuit  comprising  six  states  of  the  deep  South, 
we  think  that  it  is  our  duty  to  take  judicial  notice  that  lawyers 
residing  in  many  Southern  jurisdictions  rarely,  almost  to  the 
point  of  never,  raise  the  issue  of  systematic  exclusion  of  Negroes 
from  juries.189 

And,  as  recently  as  1972,  the  same  court  noted  "That  white  lawyers 
representing  black  clients  often  fail  to  raise  an  objection  to  jury 
composition  has  been  recognized  as  a  problem  in  this  Circuit."190 

Thus,  it  was  not  until  the  mid-1960's,  when  the  first  native  Missis- 
sippi black  lawyers  appeared  and  white  public-interest  lawyers  came  from 
other  states  to  live  and  practice  here,  that  the  "settled  law"  of  Harper 
came  to  be  applied  in  behalf  of  black  Mississippians.  The  process  was  a 
long  and  arduous  one191  as  reflected  by  the  following  statement  of  the 

isspatton  v.  Mississippi,  332  U.S.  463,  469   (1947)  . 

i89United  States  ex  rel.  Goldsby  v.  Harpole,  263  F.2d  71,  82  (5th  Cir.  1959) .  See 
generally  Kuhn,  Jury  Discrimination:  The  Next  Phase,  41  So.  Cal.  L.  Rev.  235  (1968)  ; 
Note,  Negro  Defendants  and  Southern  Lawyers:  Review  in  Federal  Habeas  Corpus  of 
Systematic  Exclusion  of  Negroes  From  Juries,  72  Yale  L.J.  559    (1963) . 

igowinters  v.  Cook,  466  F.2d  1393,  1396  (5th  Cir.  1972)  .  For  some  of  the  underlying 
rationale,  see  Windom  v.  Cook,  423  F.2d  721  (5th  Cir.  1970) ;  Whitus  v.  Balkcom,  333 
F.2d  496  (5th  Cir.  1964) ;  Cobb  v.  Balkcom,  339  F.2d  95  (5th  Cir.  1964)  ;  United  States 
ex  rel.  Goldsby  v.  Harpole,  263  F.2d  71  (5th  Cir.  1959) ,  cert,  denied,  361  U.S.  850 
(1959) ;  Colson  v.  Smith,  315  F.  Supp.  179  (S.D.  Ga.  1970) ,  aff'd,  438  F.2d  1075  (5th 
Cir.  1971). 

isiWinters  v.  Cook,  466  F.2d  1393  (5th  Cir.  1972)  (pending  rehearing  en  banc) ; 
Ford  v.  White,  430  F.2d  951  (5th  Cir.  1970);  Windom  v.  Cook,  423  F.2d  721 
(5th  Cir.  1970) ;  United  States  ex  rel.  Goldsby  v.  Harpole,  263  F.2d  71  (5th  Cir.  1959) , 
cert,  denied,  361  U.S.  850  (1959);  Willis  v.  Carson,  324  F.  Supp.  1144  (S.D.  Miss, 
1971)  ;  Goode  v.  Cook,  319  F.  Supp.  246  (S.D.  Miss.  1969)  ;  Love  v.  McGee,  297  F. 
Supp.  1314  (S.D.  Miss.  1968) ;  Ellzey  v.  Breazeale,  277  F.  Supp.  948  (S.D.  Miss.  1967)  ; 
Gordon  v.  Breazeale,  246  F.  Supp.  2  (N.D.  Miss.  1965);  Smith  v.  Breazeale,  245  F. 
Supp.  978  (N.D.  Miss.  1965) ;  Caston  v.  State,  240  So.  2d  443  (Miss.  1970)  ;  Spencer  v. 
State,  240  So.  2d  260   (Miss.  1970) ;  Smith  v.  State,  229  So.  2d  551    (Miss.  1969);  Ford 


368  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Mississippi  Supreme  Court  in  a  1967  decision: 

The  time  has  long  since  passed  that  this  Court  should  be  con- 
fronted with  a  case  where  a  defendant  can  successfully  rely  on 
a  long-continued  omission  of  Negroes  from  jury  service  to  esta- 
blish a  prima  facie  case  of  discrimination.  We  have  heretofore 
pointed  out  that  county  officials  must  see  to  it  that  jurors  are  in 
fact  and  in  good  faith  selected  without  regard  to  race.192 

Waiver  by  guilty  plea  of  racial  discrimination  in  the  jury  selection 
process  is  today  the  most  important  question  in  the  field  of  post-convic- 
tion remedies  in  Mississippi.  In  Winters  v.  Cook,™  a  17-year-old  black 
male  had  been  charged  with  the  murder  of  a  white  man.  The  defendant 
was  represented  by  admittedly  competent  counsel,  a  white  lawyer  ex- 
perienced in  criminal  trial  practice  and  familiar  with  the  available 
defense  of  racial  discrimination  in  the  selection  of  both  grand  and  petit 
juries.  As  a  matter  of  strategy,  counsel  deemed  a  guilty  plea  to  be  in  his 
client's  best  interest.  On  advice  of  counsel,  the  defendant  pleaded  guilty 
and  was  sentenced  to  life  imprisonment.  Counsel  testified  that  he  used 
the  racial  exclusion  defense  in  his  plea  bargaining  with  the  prosecution, 
but  he  did  not  advise  the  defendant  himself  of  the  availability  of  that 
defense.  The  Supreme  Court  of  Mississippi  held  that  "[t]he  petitioner's 
voluntary  guilty  plea  waived  all  non-jurisdictional  defects."194  On  peti- 
tion for  habeas  corpus,  however,  the  Fifth  Circuit  found  that  the  defen- 
dant could  not  be  held  to  a  waiver  of  his  right  to  object  to  systematic 
exclusion  of  blacks  from  both  grand  and  petit  juries.  The  court  of  ap- 
peals considered  but  rejected  the  argument  that  counsel's  knowledge  of 
the  defense,  coupled  with  his  deliberate  tactical  decision  to  opt  for  a 
guilty  plea  instead,  constituted  a  waiver.   The  court  said,  "The  rationale 

v.  State,  227  So.  2d  454  (Miss.  1969)  ;  Alexander  v.  State,  226  So.  2d  905  (Miss.  1969) ; 
Williams  v.  State,  220  So.  2d  325  (Miss.  1969) ;  King  v.  State,  210  So.  2d  887  (  Miss. 
1968)  ;  Williams  v.  State,  210  So.  2d  780  (Miss.  1968) ;  Chin  v.  State,  210  So.  2d 
666  (Miss.  1968)  ;  Morris  v.  State,  206  So.  2d  832  (Miss.  1968)  ;  Harris  v.  State,  206 
So.  2d  829  (Miss.  1968);  Whitney  v.  State,  205  So.  2d  284  (Miss.  1967) ;  Davis  v.  State, 
204  So.  2d  270  (Miss.  1967) ;  Boyd  v.  State,  204  So.  2d  165  (Miss.  1967) ;  Shields  v. 
State,  203  So.  2d  78  (Miss,  1967)  ;  Reed  v.  State,  199  So.  2d  803  (Miss.  1967)  ;  Fondren 
v.  State,  199  So.  2d  625  (Miss.  1967) ;  Shinall  v.  State,  199  So.  2d  251  (Miss.  1967)  ; 
Watts  v.  State,  196  So.  2d  79  (Miss.  1967)  ;  Shinall  v.  State,  187  So.  2d  840  (Miss.  1966) ; 
Black  v.  State,  187  So.  2d  815  (Miss.  1966);  Bass  v.  State,  254  Miss.  723,  182  So.  2d 
591  (1966)  ;  Hopkins  v.  State,  254  Miss.  484,  182  So.  2d  236  (1966) ;  Harper  v.  State, 
251  Miss.  699,  171  So.  2d  129   (1965)  . 

i92Fondren  v.  State,  199  So.  2d  625,  627   (Miss.  1967)  . 

1S3466  F.2d  1393  (5th  Cir.  1972)  (rehearing  en  banc  pending) ,  noted  in  44  Miss. 
L.J.  293    (1973) . 

^Winters  v.  State,  244  So.  2d  1,  2    (Miss.  1971)  . 


1973]  REPRESENTING  THE  UNREPRESENTED  369 

for  such  view  is  that  Winters'  lawyer  knew  of  the  right  and  that  by  fail- 
ing to  raise  the  objection  counsel  effectively  waived  the  right  for  Winters. 
But  it  is  axiomatic  that  Winters  is  the  one  who  must  make  the  waiver, 
not  his   attorney."195 

Winters  is  presently  pending  a  hearing  en  banc.  If  the  decision  of 
the  panel  holds,  it  will  mean  that  a  large  number  of  black  prisoners  in 
the  state  penitentiary  are  entitled  to  post-conviction  relief.  The  decision 
thus  has  tremendous  ramifications.  Moreover,  the  case  brings  into  sharp 
focus  the  whole  problem  of  racial  polarization  in  our  society  and  the 
effect  that  polarization  has  on  the  operation  of  our  system  of  justice. 

In  most  cases  the  issue  of  racial  discrimination  in  jury  selection 
has  been  raised  as  a  post-conviction  remedy,  usually  in  a  collateral  attack 
on  the  conviction  by  petition  for  writ  of  habeas  corpus.  In  at  least  three 
cases,  however,  black  citizens  and  civil  rights  lawyers  have  affirmatively 
attacked  the  problem  through  class  action  suits  in  federal  court  for  in- 
junctions to  enforce  the  adoption  of  jury  selection  procedures  which 
will  produce  jury  panels  with  a  fair  cross  section  of  the  racial  makeup 
of  the  voting  lists. 

In  Ford  v.  White,196  black  citizens  of  Issaquena  County  brought  a 
class  action  against  the  board  of  supervisors  for  an  injunction  to  eliminate 
discrimination  on  the  basis  of  both  race  and  sex  in  the  jury  selection 
system  of  that  county.  The  Fifth  Circuit  found  that  on  every  one  of  six 
successive  venires,  the  percentage  of  blacks  was  less  than  the  percentage  of 
black  voters  on  the  master  list,  and  in  five  out  of  six  cases,  the  disparity 
was  substantial.  The  court  found: 

The  defendant  officials  have  not  met  the  burden  of  coming  for- 
ward with  affirmative  and  constitutionally  acceptable  explana- 
tions of  the  evident  disparity.  The  stark  handwriting  on  the 
wall  of  the  figures  themselves  is  not  erased  by  the  testimony  that 
the  names  are  drawn  from  the  wheel  at  random.197 

The  court  also  held  that  where  the  voter  registration  list  also  con- 
tained names  of  women,  it  was  not  sufficient  to  have  only  a  token  number 
of  women  actually  selected  for  jury  service.  The  case  was  remanded  with 
directions  for  the  district  court  to  bring  the  record  up  to  date  and  take 
a  new,  searching  look  to  determine  if  discrimination  exists,  either  as  to 
race  or  sex. 


195466  F.2d  at  1395. 

196430  F.2d  951    (5th   Cir.   1970). 

197/d.  at  954. 


370  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

2.     Discrimination  in  Law  Enforcement 

Law  enforcement  is  another  area  of  judicial  administration  in  which 
the  participation  of  Mississippi  minority  groups  was  and  continues  to 
be  noticeably  absent.  By  and  large,  the  few  blacks  hired  by  local  police 
forces  in  recent  years  have  been  assigned  and  have  had  authority  limited 
to  black  communities.  As  to  state  law  enforcement,  it  was  not  until 
1971,  in  Morrow  v.  Crisler,198  that  the  patrol's  discriminatory  hiring 
practices  were  successfully  litigated.  The  implications  and  impact  of 
this  decision  should  be  significant. 

In  cases  where  black  people  have  been  killed  by  police  or  are  alleged 
to  be  the  victims  of  police  brutality  or  harassment,  and  prosecuting 
attorneys  and  grand  juries  are  unwilling  to  bring  indictments  so  that 
the  issues  can  be  tried  in  court,  civil  rights  lawyers  have  no  alternative 
but  to  resort  to  actions  for  civil  damages  under  federal  statutes.199 
In  such  cases  the  recovery  of  monetary  damages  is  not  the  only 
objective;  another  primary  purpose  is  to  discourage  similar  occur ances 
in  the  future.  With  few  exceptions,  the  litigation  has  not  been 
successful,  either  in  recovering  damages  or  stopping  continued  police 
brutality.  Juries  dominated  by  whites  have  been  unwilling  to  return 
verdicts  against  white  law   enforcement   personnel. 

Two  section  1983  cases  illustrate  the  importance  this  type  of  law- 
suit can  have  in  exerting  a  psychological  impact  on  public  officials  ac- 
cused of  violating  the  civil  rights  of  citizens.  Roberts  v.  Williams200  held 
the  superintendent  of  a  penal  farm  negligent  in  failing  to  instruct  a 
trusty  guard  in  the  use  of  his  weapon.  The  trusty  was  holding  a  loaded 
shotgun  when  it  discharged  into  the  face  of  a  black  juvenile  resting  on 
the  ground  in  front  of  him.  In  Anderson  v.  Nosser201  a.  large  group  of 
black  demonstrators  was  arrested  (under  an  ordinance  later  found  un- 
constitutional) and  transferred  200  miles  away  to  the  maximum  security 
unit  of  Parchman  Penitentiary  without  being  brought  before  a  magistrate. 

1984  CCH  Emp.  Prac.  Dec.  %  7563    (S.D.  Miss.  1971) ,  discussed  in  more  detail  in 

note  222  infra. 

19942  U.S.C.  §  1983   (1970)    reads: 

Every  person  who,  under  color  of  any  statute,  ordinance,  regulation,  custom, 
or  usage,  of  any  State  or  Territory,  subjects,  or  causes  to  be  subjected,  any  citi- 
zen of  the  United  States  or  other  person  within  the  jurisdiction  thereof  to  the 
deprivation  of  any  rights,  privileges,  or  immunities  secured  by  the  Constitu- 
tion and  laws,  shall  be  liable  to  the  party  injured  in  an  action  at  law,  suit 
in  equity,  or  other  proper  proceeding  for  redress. 
200302  F.  Supp.  972    (N.D.  Miss.   1969) ,  modified,  456  F.2d  819    (5th  Cir.  1971) 

(Addendum,  April,  1972) ,  cert,  denied,  sub  nom.  Roberts  v.  Smith,  404  U.S.  866  (1971) . 
201438  F.2d  183   (5th  Cir.  1971) ,  modified  on  rehearing  en  banc,  456  F.2d  835   (5th 

Cir,   1972). 


1973]  REPRESENTING  THE  UNREPRESENTED  371 

The  arresting  police  chief  was  held  liable  as  a  matter  of  law  for  failing 
to  bring  the  misdemeanants  before  a  magistrate.  The  Superintendent  of 
Parchman  was  held  liable  as  a  matter  of  law  for  summary  punishment 
(described  as  "subhuman")  which  denied  the  demonstrators  due  process 
of  law. 

Griffin  v.  Breckenridge202  is  also  an  important  precedent.  It  did  not 
involve  law  enforcement  personnel  and  is  therefore  not  strictly  an  ad- 
ministration of  justice  case,  but  it  extended  the  mantle  of  protection 
from  violation  of  civil  rights  by  law  enforcement  officials  to  violations 
by  private  citizens.  Griffin  was  an  action  for  damages  on  behalf  of 
passengers  in  a  car  stopped  on  the  highway  who  were  detained  and 
beaten  by  a  number  of  whites.  The  United  States  Supreme  Court  ruled 
that  42  U.S.C.  section  1985(3)203  applied  to  acts  of  private  discrimination 
and  that  no  state  action  need  be  shown.  The  case  put  whites  on  notice 
that,  at  least  in  federal  courts,  they  could  be  held  liable  for  such 
lawless  action. 

3.     Penitentiary  Reform 

Some  of  the  constitutional  issues  raised  in  Roberts  and  Anderson 
concerning  the  administration  of  penal  institutions  came  to  full  flower 
and  application  in  the  landmark  decision  of  Gates  v.  Collier204  In  that 
case,  also  brought  under  section  1983  and  its  accompanying  enforcement 
provisions,  the  plaintiffs  sought  both  a  declaratory  judgment  and  in- 
junctive relief  to  alleviate  several  oppressive  conditions  and  practices  at 
Parchman,  the  Mississippi  State  Penitentiary. 

The  plaintiffs  (a  class  composed  of  all  present  and  future  inmates) 
alleged  that  they  were  deprived  of  rights  guaranteed  by  the  United 
States  Constitution  by  being  subjected  to  cruel  and  unusual  punishment, 
arbitrary  censorship  and  suppression  of  mail,  and  deprivation  of  due 
process  of  law  in  the  administration  of  punishment.  Further,  all  black  in- 
mates alleged  that  they  were  denied  equal  protection  under  the  law  by 
being  segregated  from  other  inmates  and  by  being  incarcerated 
under  conditions  far  worse  than  those  provided  to  other  inmates.  On 

202403  U.S.  88  (1971) . 

20342  U.S.C.  §  1985  (3)    (1970) ,  reads  in  part: 

If  two  or  more  persons  .  .  .  conspire  or  go  in  disguise  on  the  highway 

for  the  purpose  of  depriving,  either  directly  or  indirectly,  any  person  or  class 

of  persons  of  the  equal   protection  of  the  laws,  or  of  equal  privileges  and 

immunities  under  the  laws;  .  .  .  whereby  another  is  injured  in  his  person  or 

property,  or  deprived  of  having  and  exercising  any  right  or  privilege  of  a 

citizen  of  the  United  States,  the  party  so  injured  or  deprived  may  have  an 

action  for  the  recovery  of  damages  ...  .  .  . 

2<m349  F.  Supp.  881    (1972)  . 


372  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

September  13,  1972,  the  Federal  District  Court  of  the  Northern  District 
of  Mississippi  issued  its  findings  of  fact  and  conclusions  of  law  generally 
upholding  the  claims  of  the  plaintiffs,  and  laying  the  ground  work  for 
an  order  entered  on  October  20.205 

In  its  ruling  the  court  paid  particular  attention  to  the  issues  of  dis- 
cipline, the  armed  trusty  system,  and  the  physical  conditions  to  which 
inmates  were  subjected,  but  it  did  not  mention  other  important  issues 
such  as  working  hours,  pay  for  inmates,  personnel  practices,  deprivation 
of  good  time,  censorship  and  suppression  of  reading  material,  access  to 
the  press,  or  religious  freedom.  The  court  issued  weak  rulings  on  issues 
as  basic  as  segregation,  discrimination,  and  administrative  due  process 
rights. 

The  court  found  that  fear  of  cruel  and  arbitrary  punishment 
was  the  main  factor  in  maintaining  discipline.  There  were  two 
general  types  of  disciplinary  sanctions  used  at  Parchman,  informal  and 
formal.  Informal  punishments  such  as  making  a  man  stand  on  a  soft- 
drink  crate  for  up  to  12  hours  at  gunpoint,200  putting  a  "gun  on"  a 
man,207  and  corporal  punishment  of  many  varieties  were  found  to  abound. 
Formal  disciplinary  actions  were  often  just  as  severe,  and  included  de- 
privation of  good  time,  loss  of  certain  or  all  privileges,  transfer  to  a 
punishment  camp,  or  confinement  in  the  Maximum  Security  Unit  (MSU) 
which  included  up  to  72  hours  in  a  strip  cell  officially  termed  the  "dark 
hole"  for  obvious  reasons. 

In  its  finding  of  facts,  the  court  noted: 

Although  Superintendents  Cook  and  Collier  have  issued  instruc- 
tions prohibiting  mistreatment  in  the  enforcement  of  discipline, 
the  record  is  replete  with  innumerable  instances  of  physical  bru- 
tality and  abuse  in  disciplining  inmates  who  are  sent  to  MSU. 
These  include  administering  milk  of  magnesia  as  a  form  of 
punishment,  stripping  inmates  of  their  clothes,  turning  the  fan 
on  inmates  while  naked  and  wet,  depriving  inmates  of  mattres- 
ses, hygienic  materials  and  adequate  food,  handcuffing  inmates 
to  the  fence  and  to  cells  for  long  periods  of  time,  shooting  at 
and  around  inmates  to  keep  them  standing  or  lying  in  the  yard 
at  MSU,  and  using  a  cattle  prod  to  keep  inmates  standing  or 
moving  while  at  MSU.  Indeed,  the  superintendents  and  other 
prison  officials  acquiesced  in  these  punishment  procedures.208 

205/d. 

206Some  men  were  shot  when  they  fell  off  the  crates  in  exhaustion  (Govern- 
ment Exhibits,  Gates  v.  Collier,  349  F.  Supp.  881    (1972) ) . 

207One  sergeant  reportedly  favored  the  practice  of  putting  his  shotgun  in  the 
mouth  of  a  kneeling  prisoner  and  making  him  beg  for  his  life.  (Plaintiffs'  Proposed 
Order,  Gates  v.  Collier,  349  F.  Supp.  881    (1972) ) . 

208349  F.  Supp.  at  890. 


1973]  REPRESENTING  THE  UNREPRESENTED  373 

Punishment  of  women  prisoners  sometimes  includes 

.  .  .  close  clipping  of  their  hair  and  placing  them  in  a  small  out- 
building approximately  6'  x  6',  with  no  heat,  a  blank  bed,  a  com- 
mode but  no  other  facilities,  and  lighted  by  two  small  slits  under 
the  roof.  While  they  are  not  stripped  of  their  clothing,  they 
sleep  on  a  blank  bed  and  the  comment  was  made  that  one  had 
to  be  careful  that  the  women  didn't  freeze  when  placed  there  in 
the  winter  time.20® 

The  record  showed  that  these  punishments  were  imposed  mainly  for 
violations  such  as  failure  to  work  in  a  satisfactory  manner  (e.g.,  ful- 
filling a  cotton  picking  quota),  disrespect  to  staff  members,  laziness, 
"agitating,"  or  insubordination.210  To  remedy  this  situation  the  court 
in  its  order  of  October  20,  1972,  enjoined  the  more  cruel  of  the  above 
practices  and  specifically  enjoined  the  use  of  corporal  punishment.  The 
court  did  not,  however,  make  specific  provisions  for  a  monitoring  ap- 
paratus to  oversee  enforcement  of  its  degree. 

The  lawsuit  also  attacked  the  competency  of  the  civilian  per- 
sonnel. At  the  time  of  filing,  all  the  administrative  officials  were  white, 
their  educational  level  averaged  around  the  eighth  grade,  and  the 
majority  had  been  policemen  or  farm  workers  prior  to  hiring.  Com- 
menting on  the  armed  trusty  system,  the  court  said: 

Payoffs,  favoritism,  extortion,  and  participation  in  illegal  activi- 
ties have  influenced  the  process  of  recommending  and  selecting 
trusties. 

Penitentiary  records  indicate  that  many  of  the  armed  trusties 
have  been  convicted  of  violent  crimes  and  that,  of  the  armed 
trusties  serving  as  of  April  1,  1972,  35%  had  not  been  psycho- 
logically tested,  40%  of  those  tested  were  found  to  be  retarded, 
and  71%  of  those  tested  were  found  to  have  personality  dis- 
orders. There  is  no  formal  program  at  Parchman  for  training 
trusties  and  they  are  instructed  to  maintain  discipline  by  shoot- 
ing at  inmates  who  get  out  of  the  gun  line  ....  Trusties  have 
abused  their  position  to  engage  in  loansharking,  extortion,  and 
other  illegal  conduct  ....  The  evidence  indicates  that  the  use 
of  trusties  who  exercise  authority  over  fellow  inmates  has  es- 
tablished intolerable  patterns  of  physical  mistreatment.  For  ex- 
ample,  during  the  Cook  administration,   30   inmates  received 

209D.  Brewer,  Report  to  the  Penal  Institutions  Legislative  Study  Committee 
42  (1970) .  Mr.  Brewer  is  the  Administrator  of  Corrections  Division,  Institute  of  Gov- 
ernment, at  the  University  of  Georgia.  The  study  was  made  possible  by  a  grant  from 
the  Law   Enforcement  Assistance   Administration. 

210349  F.  Supp.  881  (1972)  (Government  exhibits)  ;  accord  Brewer,  supra  note  209, 
at  31, 


374  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

gunshot  wounds,  an  additional  29  inmates  were  shot  at,  and  52 
inmates  physically  beaten.211 

The    court    ordered    the    defendants    to    commence    phasing    out    the 
trusty  system  immediately. 

In  the  area  of  administrative  rights,  that  court  set  up  procedural 
safeguards  for  a  disciplinary  hearing:  the  accused  prisoner  should  have 
written  notice  of  the  charges  against  him  and  an  opportunity  to  respond 
to  those  charges  in  a  hearing  conducted  by  an  impartial  tribunal. 

The  court  also  ordered  that  desegregation  begin  immediately,  but 
no  completion  date  for  the  desegregation  was  established. 

The  most  important  potential  limitation  of  Gates  is  that  the  order 
has  been  styled  in  such  a  way  as  to  place  the  full  responsibility  for  de- 
signing and  implementing  the  necessary  changes  solely  in  the  hands  of 
the  delinquent  defendants.  Enforcement  of  this  order  will,  in  many 
respects,  depend  on  the  good  faith  of  the  prison  officials,  which  has  not 
been  apparent  in  the  past.  For  example,  in  1971,  after  it  was  proved 
that  the  "heat  stroke"  death  of  Danny  C.  Bennett  was  indeed  a  murder 
and  that  trusties  at  the  Maximum  Security  Unit  were  beating  inmates 
with  the  full  acquiescence  of  civilian  authorities  up  to  and  including 
the  superintendent,212  legislation  was  passed  prohibiting  corporal  punish- 
ment except  under  special  circumstances.213  Gates  brought  before  the 
court  many  instances  of  beatings  after  such  practices  had  been  clearly 
outlawed  by  the  legislature. 

4.    Juvenile  Detention  and  Rehabilitation 

A  significant  part  of  the  work  of  the  OEO  programs  has  been  the 
representation  of  children  who  are  the  victims  of  adult  delinquency.  Two 
cases  are  particularly  worthy  of  note.  In  the  first  case,  Crump  v.  Board 
of  Trustees,2^  a  class  action  for  injunctive  and  declaratory  relief  resulted 
in  the  elimination  of  a  merit  point  system  which  had  previously  been 
used  by  the  training  schools  in  determining  each  child's  period  of  con- 
finement. The  ground  of  the  complaint  was  that  the  merit  point  system 
was  arbitrary  and  was  not  related  to  the  child's  process  of  rehabilitation. 
The  passage  of  time  without  rule  infractions  was  the  principal  factor 

2H349  F.  Supp.  at  889. 

2i2inmate  Danny  C.  Bennett  allegedly  died  from  a  "heat  stroke,"  but  an  autopsy 
later  revealed  that  he  had  been  beaten  to  death.  State  ex  rel.  Bennett  v.  Cook,  Civil 
No.  GC  7112-K  (N.D.  Miss.  Feb.  17,  1971),  A  section  1983  wrongful  death 
action  was  settled  by  the  entry  of  an  agreed  order. 

2i3Miss.  Code  Ann.  §  7698    (Supp.  1972) . 

2i4No.  72  J -88    (N)     (S.D.  Miss.  June  29,  1972). 


1973]  REPRESENTING  THE  UNREPRESENTED  375 

used  in  determining  the  time  for  release.  The  use  of  the  system  resulted 
in  some  children  being  held  beyond  the  time  when  they  should  have  been 
released  and  others  being  released  too  soon.  After  the  suit  was  filed  the 
Board  of  Trustees  met  and  rejected  the  merit  point  system  for  "a  program 
of  individualized  treatment  and  study  for  each  student,"215  and  the 
board's  action  was  incorporated  in  an  agreed  order.  The  new  system  for 
determining  each  child's  length  of  stay  in  the  training  school  has  the 
potential  for  being  more  compatible  with  the  concept  of  rehabilitation. 

Patterson  v.  Hopkins,216  was  a  class  action  for  injunctive  and  de- 
claratory relief  against  the  youth  court  judge,  and  other  public  officials 
of  Coahoma  County  and  the  City  of  Clarksdale  to  prohibit  the  detention 
of  children  in  the  Coahoma  County  Jail.  The  complaint  charged  that 
juveniles  were  detained  in  the  adult  jail  facility,  in  close  proximity  to 
adult  prisoners;  that  juveniles  were  not  provided  with  basic  necessities 
and  were  afforded  no  particular  care  or  treatment.  The  district  court 
refrained  from  declaring  any  of  the  alleged  practices  to  be  uncon- 
stitutional, but  the  court  did  order  the  defendants  to  place  in  effect 
a  proposal  which  defendants  had  voluntarily  made  for  remodeling  the 
juvenile  quarters  within  the  jail  to  make  them  more  satisfactory  for 
the  detention  of  children. 

E.     Economic  Rights  and  Entitlements 
1.     Discrimination  in  Municipal  Services 

The  thrust  of  this  group  of  cases  has  been  to  obtain  for  minority 
groups  the  property  rights  or  services  to  which  they  are  entitled  as  citi- 
zens. Emphasis  is  on  the  word  "entitled,"  as  opposed  to  privileges  or 
benefits,  for  the  effect  of  the  cases  has  been  to  eliminate  the  barriers  of 
racial  and  economic  discrimination  which  have  heretofore  prevented 
minority  groups  from  enjoying  the  kinds  of  income  and  services  which 
members  of  the  majority  population  have  enjoyed. 

In  the  opening  paragraph  of  the  court's  opinion  in  Hawkins  v.  Town 
of  Shaw,211  Judge  Tuttle  said: 

Referring  to  a  portion  of  town  or  a  segment  of  society  as  being 
"on  the  other  side  of  the  tracks"  has  for  too  long  been  a  familiar 
expression  to  most  Americans.  Such  a  phrase  immediately  con- 
jures up  an  area  characterized  by  poor  housing,  overcrowded 
conditions  and,  in  short,  overall  deterioration.  While  there  may 
be  many  reasons  why  such  areas  exist  in  nearly  all  of  our  cities, 

215/d.,  court  order  at  2. 

216350  F.  Supp.  676    (N.D.  Miss.   1972) . 

217437  F.2d  1286    (5th  Cir.  1971)  . 


376  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

one  reason  that  cannot  be  accepted  is  the  discriminatory  provi- 
sion of  municipal  services  based  on  race.  It  is  such  a  reason 
that  is  alleged  as  the  basis  of  this  action.218 

In  the  footnote  to  the  quoted  paragraph,  the  Fifth  Circuit  panel 
in  Shaw  noted  prophetically  that  although  the  question  had  been  drop- 
ped on  appeal,  "the  Supreme  Court  has  stated  that  wealth  as  well  as  race 
renders  a  classification  highly  suspect  and  thus  demanding  of  a  more 
exacting  judicial  scrutiny."219 

In  Shaw,  the  court  found  that  the  municipality  had  provided  var- 
ious municipal  services,  including  street  paving,  street  lights,  sanitary 
sewers,  surface  water  drainage  facilities,  water  mains,  fire  hydrants,  and 
traffic  control  signs  in  a  racially  discriminatory  manner.  The  evidence 
was  sufficient  to  establish  a  prima  facie  case  of  racial  discrimination, 
whereupon  it  became  incumbent  on  the  defendants  to  demonstrate  a 
compelling  state  interest  to  justify  the  disparity.  The  court  said: 

Because  this  court  has  long  adhered  to  the  theory  that  "figures 
speak  and  when  they  do  Courts  listen,"  ...  we  feel  that  appel- 
lants clearly  made  out  a  prima  facie  case  of  racial  discrimination. 
The  trial  court  thus  erred  in  applying  the  traditional  equal  pro- 
tection standard,  for  as  this  Court  and  the  Supreme  Court  have 
held:  "Where  racial  classifications  are  involved,  the  Equal  Pro- 
tection and  Due  Process  Clauses  of  the  Fourteenth  Amendment 
'command  a  more  stringent  standard'  in  reviewing  discretionary 
acts  of  state  or  local  officers."  .  .  .In  applying  this  test,  defend- 
ants' actions  may  be  justified  only  if  they  show  a  compelling 
state  interest.  .  .  .  We  have  thoroughly  examined  the  evidence 
and  conclude  that  no  such  compelling  interests  could  possibly 
justify  the  gross  disparities  in  services  between  black  and  white 
areas  of  town  that  this  record  reveals.220 

The  court  further  found  that  no  intent  to  discriminate  need  be  shown, 
that  "[i]n  a  civil  rights  suit  alleging  racial  discrimination  in  contraven- 
tion of  the  Fourteenth  Amendment,  actual  intent  or  motive  need  not  be 
directly  proved.  .  .  ,"221 

The  relief  afforded  by  the  court  in  Shaw  was  to  require  "that  the 
Town  of  Shaw,  itself,  submit  a  plan  for  the  court's  approval  detailing 
how  it  proposes  to  cure  the  results  of  the  long  history  of  discrimination 
which  the  record  reveals."222 

218/d.  at  1287. 

219/d.  at  1287.  However,  the  Supreme  Court's  recent  decision  in  San  Antonio 
Indep.  School  Dist.  v.  Rodriguez,  93  S.  Ct.  1278  (1973) ,  would  seem  to  limit  the 
Court's  observation  on  this  point. 

220437  F.2d  at  1288. 

221/d.  at  1291-92. 

222/d.  at  1293.  


1973]  REPRESENTING  THE  UNREPRESENTED  377 

Shaw  required  meticulous  preparation;  the  fact-gathering  process 
for  such  a  case  being  tedious,  time  consuming,  and  expensive.  Neverthe- 
less, the  case  is  a  landmark  precedent,  and  many  other  municipalities  in 
Mississippi  are  vulnerable  to  challenges  similar  to  Shaw.223 

2.     The  Right  to  Employment 

The  right  to  earn  a  livelihood  and  be  productive,  the  right  not  to 
be  beholden  to  the  rest  of  society,  and  the  right  to  have  the  kind  of 
independence  that  only  gainful  employment  can  bring  under  our  exist- 
ing socio-economic  system,  is  as  fundamental  as  the  more  conventional 
rights  protected  by  our  Constitution.  Therefore,  when  citizens  are  de- 
nied employment  because  of  their  race,  or  when  members  of  minority 
groups  are  relegated  to  less  challenging  and  less  remunerative  employ- 
ment because  of  their  race,  the  discriminatory  practices  can  be  challenged 
in  court. 

As  the  civil  rights  movement  has  shifted  from  direct  confrontation 
politics  to  a  struggle  for  political  and  economic  power,  employment  dis- 
crimination cases  have  become  increasingly  important.  Two  basic  reme- 
dies are  available:  (1)  the  post-Civil  War  civil  rights  acts224  and  (2) 
Title  VII  of  the  Civil  Rights  Act  of  1964.225  Both  are  being  utilized  by 
lawyers  representing  plaintiffs  in  employment  discrimination  cases. 

Madlock  v.  Sardis  Luggage  Co.22G  which  was  settled  and  resolved  by 
the  entry  of  an  agreed  decree,  illustrates  the  results  of  a  successful  em- 
ployment discrimination  case.  The  consent  order  provided:  (1)  for  an 
award  of  120  thousand  dollars  to  be  distributed  among  the  plaintiffs  and 
the  class  they  represented  in  accordance  with  a  formula  appended  to  the 

223Harris  v.  Itta  Bena,  No.  GC-6756  (N.D.  Miss,,  filed  Nov.  21,  1967),  was  filed 
along  with  Shaw  and  is  presently  being  worked  out  by  agreement.  In  October,  1972, 
the  parties  in  Brooks  v.  Town  of  Sunflower,  No.  BC  7157  -  K  (N.D.  Miss.,  filed 
May  27,  1971) ,  accepted  a  suitable  plan  to  provide  adequate  sewage,  water  systems 
and  fire  hydrants  to  the  town's  black  citizens  equal  to  those  in  the  white  community. 
The  total  cost  of  the  proposed  improvements  is  500  thousand  dollars.  Defendants  in 
Brooks  have  also  admitted  that  the  street  paving,  drainage  ditches,  and  street  light- 
ing system  in  the  black  portion  of  town  is  inadequate  as  compared  with  the  white 
residential  district.  The  parties  have  agreed  on  a  plan  for  street  paving  and  the 
installation  of  street  lighting.  They  have  only  to  work  out  the  details  of  a  drain- 
age ditch  system  before  the  case  is  completely  settled. 

For  a  thorough  consideration  of  the  Shaw  decision  and  the  providing  of  municipal 
services  on  a  non-discriminatory  basis,  see  Comment,  Equal  Municipal  Services  for  the 
Other  Side  of  the  Tracks,  43  Miss.  L.J.  67    (1972) . 

22442  U.S.C.  §§  1981-83   (1970) . 

22542  U.S.C.  §  2000   (e-h)    (Supp.  1971) . 

2263  CCH  Emp.  Prac.  Dec.  f  8149   (N.D.  Miss.  1971) . 


378  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

order;  (2)  for  an  award  of  25  thousand  dollars  for  plaintiffs  attorneys 
fees  and  expenses;  (3)  for  retroactive  benefits  for  the  plaintiffs  who 
were  offered  and  accepted  employment;  (4)  for  a  period  of  4  years 
the  defendant  was  required  to  hire  two  blacks  for  every  white  until  its 
employee  work  force  contained  a  ratio  in  proportion  to  the  racial  make- 
up of  the  population  of  Panola  County  as  reflected  by  the  1970  census: 
(5)  for  blacks  who  quit  their  jobs  to  be  replaced  by  blacks;  (6)  for 
the  defendant  to  be  prohibited  from  increasing  its  standards  of  employ- 
ment; and  (7)  for  defendant  to  be  required  to  make  periodic  reports 
to  plaintiffs'  counsel  for  a  period  of  4  years. 

The  issue  in  Scott  v.  Douglas  &  Lomason  Co.22'  was  racial  discrimi- 
nation in  promotions  to  skilled  crafts  and  supervisory  categories.  The 
plaintiffs  contended  that  blacks  had  been  hired  for  menial  tasks  only. 
The  case  was  also  settled  after  the  discovery  process  was  completed.  The 
settlement  called  for  10  thousand  dollars  to  be  awarded  to  the  three 
named  plaintiffs,  and  that  80  percent  of  all  future  job  openings  in 
skilled  crafts  and  supervisory  categories  be  awarded  to  black  employees 
until  the  ratio  of  employees  in  these  categories  reflected  the  racial  ratio 
in  the  plant  as  a  whole,  which  was  60  percent  black. 

The  nature  of  the  Title  VII  suits  is  such  that  plaintiffs  are  usually 
required  to  prove  the  allegations  of  the  complaint  by  resort  to  the  de- 
fendant's records  or  to  the  records  of  the  Mississippi  Employment  Security 
Commission  (MESC) ,  which  means  that  discovery  proceedings  in  such 
cases  are  of  particular  importance.  Three  reported  cases  in  Mississippi 
have  established  plaintiffs'  right  to  liberal  discovery.  In  Scott  the  court 
said  that  "liberal  discovery  is  peculiarly  appropriate  to  suits  of  this 
character  and  that  discovery  is  subject  to  only  the  narrowest  re- 
strictions."228 

Carr  v.  Monroe  Manufacturing  Co.229  held  that  the  records  of 
the  Mississippi  Employment  Security  Commission  are  not  privileged; 
that  applicable  records  would  have  to  be  produced  by  the  commission 
in  cases  of  this  type;  that  the  officials  of  MESC  would  not  be  allowed  to 
block  out  names  and  addresses  of  applicants  for  employment;  and  that 
the  district  court  had  ample  authority  and  ability  to  issue  protective 
orders  to  safeguard  the  privacy  of  individuals  who  might  be  affected 
thereby.  Similarly,  Fears  v.  Burris  Manufacturing  Co.230  involved  the 
power  of  the  federal  court  to  compel  MESC,  a  state  agency,  to  produce 
its  records,  MESC  having  argued  that  Mississippi   law  created  an  ab- 

227CCH  Emp.  Prac.  Dec.  f  8006  (N.D.  Miss.  1970)  . 

228/d. 

22943I  F.2d  384  (5th  Cir.  1970)  . 
230436  F.2d  1357  (5th  Cir.  1971)  . 


1973]  REPRESENTING  THE  UNREPRESENTED  379 

solute  privilege  that  prevented  it  from  producing  its  records  in  a  court 
proceeding.  The  Fifth  Circuit  held  that  a  federal  court  has  the  power 
to  require  disclosure  of  the  records  despite  the  existence  of  any  state 
rule  holding  the  communications  to  be  privileged. 

The  important  question  of  prospective  employees'  ability  to 
raise  claims  of  discrimination  against  presently  employed  workers  was 
litigated  in  Mississippi  in  Carr  v.  Conoco  Plastics,  Inc.231  (later  Monroe 
Manufacturing  Company)  .  In  Carr,  the  court  held  that  in  a  situation 
where  the  plaintiffs  were  the  only  prospective  employees,  and  they  were 
members  of  the  class  who  had  been  denied  employment,  it  was  proper 
for  them  to  bring  a  class  action  on  behalf  of  themselves  as  well  as  on 
behalf  of  blacks  who  were  employees  of  the  defendants,  with  respect  to 
intra-plant  discriminatory  practices.  The  court  held  that  if  a  situation 
should  arise  where  the  prospective  employees  and  those  who  were  al- 
ready employed  had  adverse  interests,  the  court  had  ample  power  and 
authority  to  realign  the  parties. 

From  a  historical  and  political  standpoint,  the  most  important  em- 
ployment discrimination  case  in  Mississippi  is  Morrow  v.  Crisler232  the 
suit  that  desegregated  the  Mississippi  State  Highway  Safety  Patrol.  Al- 
though the  relief  afforded  to  plaintiffs  fell  far  short  of  expectations, 
given  the  obvious  pattern  of  discrimination  found  by  the  court,  the  de- 
cision has  had  and  will  continue  to  have  an  important  prospective 
effect.233 

231295  F.  Supp.  1281  (N.D.  Miss.  1969) ,  aff'd,  423  F.2d  57  (5th  Cir.  1970) ,  cert, 
denied,  400  U.S.  951  (1970)  .  In  affirming  the  district  court's  judgment  for  plaintiffs, 
the  Fifth  Circuit  reasoned  as  follows:  "It  is  foolhardy  to  say  that  once  plaintiffs  have 
removed  racial  discrimination  practices  at  the  door,  they  are  required  to  start  anew 
in  order  to  remove  those  that  exist  on  the  inside."  423  F.2d  at  65. 

232CCH  Emp.  Prac.  Dec.  §  8119  (S.D.  Miss.  1971)  (on  motions  to  dismiss  and  for 
summary  judgment)  ,  4  CCH  Emp.  Prac.  Dec.  §  7563  (S.D.  Miss.  1971)  (decision  on 
merits) ,  4  CCH  Emp.  Prac.  Dec.  §  7541  (S.D.  Miss.  1971)  (order  following  decision  on 
merits) ,  4  CCH  Emp.  Prac.  Dec  §  7585    (S.D.  Miss.  1971)     (awarding  attorneys'  fees)  . 

233ln  Morrow  the  district  court  made  detailed  findings  of  fact  and  conclusions 
of  law,  following  which  a  detailed  order  was  entered  affording  both  declaratory  and 
injunctive  relief.  The  nature  of  the  order  by  the  court,  however,  was  all  of  a  negative 
character;  i.e.,  the  court  prohibited  in  very  specific  terms  all  of  the  various  dis- 
criminatory practices  it  had  found  to  exist  in  the  operation  of  the  defendant  agency. 
The  decree  did  not,  however,  order  any  of  the  affirmative  relief  requested  by  the 
plaintiffs.  The  court  refused  to  order  the  named  plaintiffs  to  be  hired,  or  to  award 
them  back  pay  from  the  date  of  their  original  applications  to  the  date  of  the  order. 
The  court  also  refused  to  order  the  defendants  to  implement  any  kind  of  policy  of 
recruitment  that  would  require  the  defendants  to  increase  the  number  of  black  of- 
ficers on  the  Mississippi  Highway  Patrol  by  giving  preference  to  blacks.  After  entry 
of  the  decree  the  two  named  plaintiffs  in  Morrow  pursued  their  application  for  em- 


380  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Employment  discrimination  litigation  will  probably  accelerate  in 
the  future.  Most  Title  VII  cases  are  now  being  handled  by  the  public- 
interest  lawyer  groups  in  Mississippi.  In  all  probability,  however,  private 
practitioners  will  become  increasingly  interested  in  such  litigation  for  a 
number  of  reasons.  EEOC  is  actively  seeking  to  interest  private  practi- 
tioners in  the  problems  of  economic  discrimination  and  is  conducting 
seminars  on  Title  VII  laws  and  procedures.  Private  practitioners  will 
probably  become  interested  in  representing  women  in  the  assertion  of 
their  claims  against  sexual  discrimination.  Finally,  the  statute  provides 
for  the  allowance  of  attorneys  fees,  which  means  that  Title  VII  cases  are 
fee  generating  cases.234  The  OEO  programs  have  been  handling  Title 
VII  cases  thus  far  only  when  private  practitioners  have  been  unwilling 
to  do  so.  As  the  private  bar  assumes  responsibility  for  this  field  of  work, 
the  publicly  financed  programs  will  no  longer  be  compelled  to  handle 
these  cases. 

3.     Welfare  Rights 

In  the  field  of  welfare  rights  the  work  of  the  public-interest  groups 
(largely  the  OEO-funded  programs)  has  been  to  secure  for  their  clients 
the  monetary  payments  to  which  they  are  entitled  under  the  Social 
Security  Act.  The  cases  therefore  involve  questions  of  statutory  interpre- 
tation. Constitutional  issues  have  been  raised,  but  plaintiff's  lawyers 
have  usually  been  able  to  secure  appropriate  relief  through  interpreta- 
tion of  the  Social  Security  Act  by  a  single  judge  federal  district  court, 
rather  than  a  three-judge  court.235 

The  welfare  rights  cases  in  Mississippi  may  be  summarized  as  fol- 
lows: The  state  is  not  required  to  participate  in  welfare  rights  and 
medical  services  programs  afforded  by  the  federal  statutes.  If  it  elects  to 
do  so,  however,  as  Mississippi  has  done,  then  it  must  comply  with  the 
provisions  of  those  statutes.  The  state  may  not,  for  example,  engraft 
additional  eligibility  requirements  for  welfare  income  or  medical  services 
on  the  federal  Social  Security  Act.  Nor  may  the  state  establish  its  own 

ployment.  Neither  was  hired.  Plaintiff  Morrow  was  found  to  be  underweight,  and 
plaintiff  Magum  was  alleged  to  have  failed  one  of  the  tests.  This  action,  along  with 
the  refusal  of  the  court  to  grant  plaintiffs  any  affirmative  relief  to  alleviate  the  re- 
sults of  past  discrimination,  was  appealed  to  the  Fifth  Circuit  which,  by  a  2-1  decision 
affirmed  the  district  court  decree,  and  refused  to  grant  any  additional  relief.  Morrow 
v.  Crisler,  No.  72-1136   (5th  Cir.  Apr.  18,  1973) . 

23442  U.S.C.  §  2000a-3  (b)    (1970)  . 

235  A  three-judge  court  is  required  when  an  injunction  is  sought  to  prevent  state 
officials  from  enforcing  unconstitutional  statutes  of  state  wide  application.  28  U.S.C.  § 
2281    (1970). 


1973]  REPRESENTING  THE  UNREPRESENTED  381 

time  limitations  for  implementing  the  provisions  of  the  federal  act.  In 
short,  if  the  state  elects  to  participate  in  the  program  it  must  comply 
with  the  federal  law. 

In  Saddler  v.  Winstead,236  for  example,  the  state  department  of  pub- 
lic welfare  adopted  regulations  which  had  the  effect  of  denying  aid 
for  dependent  children  (AFDC)  payments  to  any  welfare  mother  or 
other  custodian  of  dependent  children  who  refused  to  report  to  state 
law  enforcement  offices  the  names  of  the  parent(s)  who  had  deserted 
the  dependent  children.  The  objective  of  the  regulation,  of  course, 
was  to  require  cooperation  on  the  part  of  the  children's  custodian  in 
the  prosecution  of  the  parent  for  non-support  of  the  child  or  children. 
Suit  was  filed  as  a  class  action  on  behalf  of  the  custodian  (who  happened 
to  be  grandparents  of  the  children  in  question)  and  all  persons  similarly 
situated.  The  plaintiffs  refused  to  report  the  whereabouts  of  the  chil- 
dren's parents  or  to  otherwise  cooperate  with  the  welfare  department 
and  state  law  enforcement  authorities  in  their  desire  to  prosecute  the 
parents  for  non-support,  whereupon  the  plaintiff's  AFDC  payments  were 
withheld.  Constitutional  questions  were  raised  in  the  complaint  but 
were  deferred  on  motion  of  the  plaintiffs  in  order  that  the  question 
of  statutory  interpretation  could  be  disposed  of  by  a  single  judge 
district  court. 

The  court  held  that  "the  challenged  regulation  is  invalid  on  the 
ground  that  the  regulation  imposes  a  condition  of  eligibility  not  au- 
thorized by  the  Act."237  The  court  said: 

The  effect  of  the  challenged  regulation  is  to  withhold  aid  from 
a  needy  and  dependent  child,  otherwise  entitled  to  a  grant  of 
ADC  assistance,  where  the  parent  or  other  grantee  relative  re- 
fuses to  report  the  absent  parent  and  actively  assist  law-enforce- 
ment officials  in  his  or  her  prosecution.  Through  no  fault  of  its 
own  the  child  is  deprived  of  the  aid  and  assistance  which  it 
would  otherwise  receive  pursuant  to  the  provisions  of  the  Act. 
It  is  apparent  to  the  Court  that  the  Act  and  the  regulations 
adopted  by  the  Department  of  Health,  Education  and  Welfare 
provide  in  express  terms  that  a  report  to  law-enforcement  offi- 
cials is  not  required  until  after  a  giant  of  aid  and  assistance 
has  been  made  to  the  needy  and  dependent  child.  The  chal- 
lenged regulation  acts  to  withhold  a  grant  of  aid  to  the  needy 
and  dependent  child  until  the  parent  or  grantee  relative  fur- 
nishes law-enforcement  officials  with  information  concerning 
the  absent  parent,  and  enters  into  an  agreement  to  actively  as- 
sist law-enforcement  officials  in  the  prosecution  of  legal  reme- 
dies against  the  absent  parent.   Thus,  the  challenged  regulation 

236332  F.  Supp.  130   (N.D.  Miss.  1971)  . 
237/d.  at  135. 


382  MISSISSIPPI  LAW  JOURNAL  [vol,  44 

imposes  an  additional  condition  upon  the  grant  of  such  assist- 
ance.238 

Quarles  v.  Mathews239  was  very  similar  to  Saddler,  except  that 
Quarles  involved  an  attempt  by  the  state  to  force  the  cooperation  of 
custodians  of  illegitimate  children  in  the  prosecution  of  the  children's 
putative  fathers.  In  Quarles  the  court  defined  the  class  as  "all  mothers 
or  caretakers  of  illegitimate  defendant  children  residing  in  the  state  of 
Mississippi  who  would  be  eligible  to  receive  aid  to  dependent  children 
(ADC)  benefits  but  for  their  refusal  to  report  the  putative  fathers  of 
the  dependent  children  for  desertion  and  non-support."240 

As  is  Saddler,  the  court  in  Quarles  held  that  the  regulation  under 
attack  was  an  attempt  by  the  state  to  engraft  an  additional  eligibility 
requirement  onto  the  Social  Security  Act,  which  it  could  not  lawfully 
do.  In  so  holding,  the  court  recognized  the  power  and  right  of  the  state 
to  seek  out  and  prosecute  the  putative  father,  and  that  the  welfare  de- 
partment has  the  obligation  under  state  law  to  report  the  mother  of  an 
illegitimate  child  who  refuses  or  neglects  to  initiate  paternity  and  sup- 
port proceedings  against  the  putative  father.  Although  it  has  the  right 
to  inform  the  custodian  of  its  duty  to  initiate  support  proceedings,  the 
welfare  department  was  prohibited  from  taking  any  legal  action  against 
the  custodian  for  her  refusal  to  cooperate  or  from  intimidating  her  by 
suggesting  that  she  withdraw  her  application  for  AFDC  payments. 

In  another  important  case,  Triplett  v.  Cobb,2*1  the  state  of  Missis- 
sippi was  held  liable  for  Medicaid  payments  to  caretaker  relatives,  as 
well  as  to  the  dependent  children  under  their  care.  The  decision  afford- 
ed Medicaid  payments  to  27,316  persons  who  had  theretofore  been  de- 
nied such  payments  under  state  welfare  regulations. 

In  Triplett  the  court  defined  the  class  of  plaintiffs  as  "all  needy 
parents  and  other  needy  caretaker  relatives  who  are  recipients  of  AFDC 
grants  in  the  state  of  Mississippi  and  who  have  been  excluded  by  de- 
fendants from  receiving  benefits  under  the  Mississippi  Medical  Assist- 
ance Program."242  The  question  posed  by  the  court  was  whether  plain- 
tiffs, as  well  as  the  dependent  children  under  their  care,  were  actually 
"qualified  for  public  assistance  grants"243  under  Title  IV  of  the  Social 
Security  Act.    The  court  held  that   they  were  qualified,   finding  that 

238/d. 

239No.  WC  72-6-S   (N.D.  Miss.  Dec.  18,  1972)  . 

240/d.  final  decree  at  1. 

241331  F.  Supp.  652    (N.D.  Miss.  1971)  . 

242 /d.  at  661. 

243/d.  at  655. 


1973]  REPRESENTING  THE  UNREPRESENTED  383 

plaintiffs'  needs  were  considered  in  the  determination  of  the  needy  fam- 
ily's AFDC  grant  and  that  this  was  a  mandatory  provision  included  in 
the  state's  plan  pursuant  to  42  U.S.C.  section  602(a)(7).  The  court  also 
held  that 

the  regulation  promulgated  by  the  Mississippi  Department  of 
Public  Welfare  stating  [that]:  ".  .  .  In  ADC  the  eligible  children 
are  the  recipients  and  are  thus  the  ones  eligible  for  medical  ser- 
vices." is  [sic]  in  conflict  with  the  "federal  and  state  statutes" 
heretofore  specified  and  is  an  erroneous  interpretation  of  pro- 
visions defining  persons  who  are  receiving  money  payments 
from  Mississippi's  "Aid  to  Dependent  Children"  program.244 

Retroactive  medicaid  payments  were  awarded  to  the  named  plaintiffs 
and  to  all  parents  and  other  caretaker  relatives  who  were  receiving 
assistance  under  the  AFDC  program,  retroactive  to  October  29,  1970,  the 
date  on  which  the  welfare  department  was  notified  by  the  Department 
of  Health,  Education,  and  Welfare,  that  its  questioned  regulation  was  in 
violation  of  the  Social  Security  Act. 

Another  attempt  by  the  state  to  engraft  an  additional  eligibility 
requirement  onto  the  AFDC  statute  was  struck  down  in  Thomas  v. 
Mathews.245  There,  a  provision  of  section  172  of  the  Mississippi  Code 
which  defined  a  "dependent  child"  (for  16-  and  17-year-olds)  as  one 
"regularly  attending  school"  or  disabled  from  attending  school,  was  de- 
clared to  be  in  violation  of  the  Social  Security  Act  and  was  therefore 
held  to  be  invalid  and  unenforceable.  Retroactive  benefits  were  ordered 
to  be  paid  to  the  named  plaintiffs,  but  the  rights  of  the  other  members 
of  the  class,  defined  by  the  court  as  "all  residents  of  the  state  of  Missis- 
sippi whose  aid  to  dependent  children  grant  has  been  or  in  the  future 
will  be  reduced  or  terminated  because  an  otherwise  eligible  family  mem- 
ber 16  or  17  years  of  age  is  not  regularly  attending  school"246  were 
ordered  to  take  effect  as  of  the  date  of  the  order. 

Finally,  two  related  suits  against  the  State  Department  of  Public 
Welfare  have  established  the  rights  of  welfare  applicants  to  have  their 
applications  acted  upon  by  the  Welfare  Department  within  the  time 
limitation  specified  by  regulations  of  the  Department  of  Health,  Educa- 
tion, and  Welfare,  i.e.,  within  30  days  in  the  case  of  AFDC  applications,247 
and  within  60  days  in  the  case  of  applicants  under  the  Aid  to  the  Perma- 

244/d.  at  658. 

2«No.  72  J -34    (N)  (S.D.  Miss.  June  15,  1972). 
246/d.  court  order  at  1. 

247Hayes  v.   Mississippi   State  Dep't  of  Pub.  Welfare,  No.  72  J  -     143    (R)     (S.D. 
Miss.  Mar.  21,  1973). 


384  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

nently  and  Totally  Disabled  Benefits  program.248  Mississippi  statutes 
and  welfare  department  budgetary  line  item  limitations  on  welfare 
assistance  and  administrative  costs  were  declared  invalid  and  unenforce- 
able insofar  as  they  preclude  the  acceptance  or  rejection  of  such  applica- 
tions within  the  specified  time  limitation. 

4.     Property  Rights  and  the  14th  Amendment 

Not  all  of  the  law  reform  litigation  initiated  by  public-interest 
groups  has  been  in  defense  of  personal  liberty  or  the  enforcement  of 
"civil  rights"  as  that  term  is  traditionally  used.  In  Lynch  v.  Household 
Finance  Corp.,249  holding  that  the  post-Civil  War  civil  rights  acts  are 
applicable  to  property  rights,  the  Supreme  Court  said: 

Such  difficulties  indicate  that  the  dichotomy  between  personal 
liberties  and  property  rights  is  a  false  one.  Property  does  not 
have  rights.  People  have  rights.  The  right  to  enjoy  property 
without  unlawful  deprivation,  no  less  than  the  right  to  speak 
or  the  right  to  travel,  is,  in  truth  a  "personal"  right,  whether 
the  "property"  in  question  be  a  welfare  check,  a  home  or  a  sav- 
ings account.  In  fact,  a  fundamental  interdependence  exists 
between  the  personal  right  to  liberty  and  the  personal  right  in 
property.    Neither  could  have  meaning  without  the  other.250 

The  point  made  by  the  Court  in  the  foregoing  quotation  is  par- 
ticularly important  to  poor  people,  because  they  are  acutely  affected 
when  deprived  of  their  property  rights  without  due  process  of  law.  For  a 
person  on  a  marginal  or  sub-marginal  income,  access  to  a  secondhand 
automobile  may  mean  the  difference  between  employment  and  non- 
employment.  The  loss  by  a  poor  family  of  its  equity  in  furniture  and 
household  goods  acquired  over  long  years  of  installment  payments  is  a 
major  catastrophe.  The  loss  of  property  is  certainly  a  serious  matter  for 
anyone,  but  for  the  poor  it  is  frequently  the  difference  between  a  pro- 
ductive existence  and  destitution. 

Four  recent  cases  in  Mississippi  have  applied  Supreme  Court  rulings 
to  invalidate  portions  of  Mississippi  statutes  which  allowed  the  depriva- 
tion of  property  without  due  process  of  law.  In  Banks  v.  Crisler251 
certain  provisions  of  the  Mississippi  Safety  Responsibility  Act252  were 
held  to  be  "unconstitutional  insofar  as  they  require  drivers  or  owners 

248Benton  v.  Mississippi  State  Dep't  of  Pub.  Welfare,  No.  5038    (N)     (S.D.  Miss. 
Nov.  28,  1972). 

249405  U.S.  538    (1972) . 

250/d.  at  552. 

251N0.  4958   (R)     (S.D..  Miss.  Sept.  11,  1972). 

252Miss.  Code  Ann.  §§  8285-04  to  -07,  -29   (Supp.  1972) . 


1973]  REPRESENTING  THE  UNREPRESENTED  385 

of  automobiles  involved  in  accidents  ...  to  post  proof  of  future  financial 
responsibility  without  an  adjudication  of  the  fault  or  negligence  of  said 
owner  or  driver  in  such  an  accident  by  a  hearing  which  affords  basic 
due  process  safeguards.  .  .  ,"253  Citing  and  relying  on  Bell  v.  Burson254 
the  district  court  declared  the  applicable  sections  to  be 

void  and  unenforceable  except  insofar  as  they  are  applied  to 
drivers  of  automobiles  involved  in  accidents  as  set  forth  in 
§  8285-05  of  the  Mississippi  Code  Annotated,  and  whose  fault  in 
such  accident  has  been  demonstrated  by  either  (1)  a  conviction 
not  under  appeal,  or  forfeiture  of  bail  not  vacated,  of  a  traffic 
offense  involved  with  the  accident,  or  (2)  a  finding  of  negli- 
gence in  the  accident  by  judgment  against  such  persons  not 
vacated  or  under  appeal  in  a  Civil  Court  proceeding.255 

In  Turner  v.  Colonial  Finance  Corp.,256  the  Mississippi  replevin 
statutes257  were  declared  to  be  void  and  unenforceable  insofar  as  they 
authorized  the  summary  seizure  of  personal  property  without  affording 
adequate  notice  and  an  opportunity  for  a  preseizure  hearing  to  deter- 
mine possessory  rights  to  the  property.  In  like  manner,  Taylor  v.  Ross258 
held  the  enforcement  provisions  by  summons  and  seizure  of  the  Missis- 
sippi personal  property  lien  statutes259  to  be  invalid,  and  in  James  v. 
Pinnix260  the  court  held  that  the  seizure  rights  in  favor  of  secured 
creditors  under  the  provisions  of  the  state's  version  of  the  Uniform 
Commercial  Code261  are  unconstitutional  on  the  same  ground;  i.e.,  that 
these  statutes  allow  the  seizure  of  property  without  adequate  notice  and 
hearing  to  determine  the  claimant's  possessory  rights.  All  three  of  the 
possession  cases  were  class  actions,  and  all  were  based  on  recent  decisions 
of  the  Supreme  Court  of  the  United  States,262  thus  obviating  the  neces- 
sity for  convening  a  three-judge  court.263 

F.     Student  Rights 
Student  rights  have  emerged  significantly  through  court  decisions  in 

253No.  4958    (R),  court  order  at  1    (S.D.  Miss.  Sept.  11,  1972). 
254402  U.S.  535   (1971) . 
255No.  4958  (R) ,  court  order  at  2. 
256No.  4821    (S.D.  Miss.  Oct.  5,  1972). 
257Miss.  Code  Ann.  §§  2841-69  (1956) . 
258No.  72J  -  108C    (S.D.  Miss.  Jan.  19,  1973) . 
259Miss.  Code  Ann.  §  341    (1956) . 
260No.  72  J -250    (N)     (S.D.  Miss.  Feb.  14,  1973). 
26iMiss.  Code  Ann.  §  41A:9-503    (Spec.  Supp.  1968) . 

262Fuentis  v.  Shevin,  407  U.S.  67    (1972) ;  Lynch  v.  Household  Fin.  Corp.,  405  U.S. 
538   (1972). 

26328  U.S.C.  §  2281    (1970). 


386  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

recent  years,264  However,  despite  the  students'  improved  stature  within 
this  country's  legal  framework,  the  State  of  Mississippi  has  continued 
to  recognize  students  as  mere  wards  of  society.265  Legal  Services  and 
other  public-interest  law  firms  have  been  diligent  in  protecting  student 
interests  for  the  same  reason  they  have  represented  the  interests  of  minor- 
ity groups  and  the  poor  —  because  private  practitioners  have  been 
unwilling  to  do  so. 

Efforts  to  protect  student  rights  have  centered  on  both  student  ad- 
ministration conflicts266  and  off  campus  governmental  action.267  One  re- 
cent controversy  between  students  and  school  administrators  involved 
the  suppression  of  a  student  literary  publication  by  the  University  of 
Mississippi.268  The  University  refused  to  giant  the  students  a  hearing 
and  a  motion  for  a  temporary  restraining  order  was  sought.  The  trial 
court  ordered  the  University  to  release  the  magazine,  holding  that  first 
and  14th  amendment  rights  had  been  violated.  Relying  on  Stacy  v. 
Williams,269  the  court  held  that  the  University  was  at  the  least  required 
to  provide  students  with  a  hearing.  In  Stacy  the  University  had  denied 
a  student  request  to  hear  speakers  of  their  choice. 

Students  on  the  campus  of  the  University  of  Southern  Mississippi 
had  similar  difficulty  when  they  attempted  to  organize  a  local  chapter 
of  the  American  Civil  Liberties  Union.  Despite  numerous  decisions  pro- 
hibiting the  type  of  conduct  engaged  in  by  the  University  of  Southern 
Mississippi,  the  students  were  forced  into  extended  litigation  in  order 
to  protect  basic  constitutional  rights.270 

School  administrators  have  not  limited  their  powers  to  decisions 
concerning  purely  educational  matters,  but  have  extended  themselves  to 
questions  of  individual  grooming.271  Many  of  the  state  elementary  and 
secondary  schools  have  adopted  student  dress  codes,  prohibiting  the 
wearing  of  certain  types  of  apparel,  and  proscribing  the  length  of  hair 

264Papish  v.  Board  of  Curators  of  the  Univ.  of  Mo.,  93  S.  Ct.  1197  (1973); 
Healy  v.  James,  404  U.S.  983  (1972)  ;  Tinker  v.  Des  Moines  Indep.  Community 
School  Dist.,  393  U.S.  503    (1969)  . 

265Stacy  v.  Williams,  306  F.  Supp.  963    (N.D.  Miss.  1969) . 

266Bazaar  v.  Fortune,  No.  WC  72-28-K  (N.D.  Miss.  May  18,  1972)  affd,  No.  72- 
2175   (5th  Cir.  Feb.  27,  1973) . 

26?Frazier  v.  Callicutt,  No.  WC  7277-S   (N.D.  Miss.  Oct.  11,  1972)  . 

268Bazaar  v.  Fortune,  No.  WC  72-28-K  (N.D.  Miss.  May  18,  1972)  ,  affd,  No.  72- 
2175    (5th  Cir.  Feb.  27,  1973). 

269306  F.  Supp.  963  (N.D.  Miss.  1969)  affd,  432  F.2d  916  (5th  Cir.  1970)  . 

270University  of  So.  Miss.  Chapter  of  the  Miss.  Civ.  Lib.  U,  v.  University  of  So. 
Miss.,  452  F.2d  564   (5th  Cir.  1971)  . 

27ijohnson  v.  Drew  Mun.  Sep.  School  Dist.,  No.  GC  7315-K  (N.D.  Miss.,  filed 
Feb.  8,  1973)  . 


1973]  REPRESENTING  THE  UNREPRESENTED  387 

for  male  students.272  When  these  school  codes  seem  overly  oppressive, 
or  smack  of  racial  overtones,  public-interest  law  firms  have  been  asked  to 
assist  the  affected  students.273  Success  in  litigating  the  validity  of  these 
codes  apparently  has  turned  on  several  factors.  Student  dress  code  vio- 
lators must  first  establish  the  substantiality  of  the  right  involved.274  For 
instance,  the  court  will  lend  a  more  sympathetic  ear  to  one  who  has 
been  expelled  from  school  indefinitely,  than  to  the  student  who  has 
been  suspended  for  a  day  or  two.275  Secondly,  one  court  of  appeals  has 
arbitrarily  differentiated  high  school  students  rights  from  college  student 
rights.270  Finally,  most  courts  will  look  to  procedures  employed  by 
school  administrators  to  enforce  dress  codes.  If  those  procedures  fail  to 
provide  adequate  due  process  standards,  substantive  judgments  by  the 
school  system  may  be  overturned.  It  is  in  this  last  area  that  Mississippi 
school  officials  have  often  disregarded  basic  student  rights.277 

Both  high  school  and  college  students  are  demanding  a  greater 
voice  in  school  policy-making  decisions.  At  several  high  schools,  black 
students  have  boycotted  classes  because  of  a  belief  that  black  teachers, 
administrators,  and  students  were  not  being  afforded  equal  treatment.278 
In  at  least  one  instance  the  students  were  expelled  from  school.  Since  no 
hearings  were  provided  the  students,  the  court  enjoined  the  suspensions 
and  ordered  the  readmission  of  those  expelled.279 

A  number  of  Mississippi  students  have  suffered  financial  hardship 
as  a  result  of  the  state's  residency  statute  for  tuition  purposes.280  In  one 
instance  the  University  of  Mississippi,  pursuant  to  the  statutory  man- 
date, declared  a  lifelong  resident  of  Lafayette  County,  Mississippi,  a  non- 
resident, and  demanded  the  student  pay  out  of  state  tuition.281  The 

272See,  e.g.,  Oxford   Mun.  Sep.  School  Dist.  Dress  Code. 

27sSee,  e.g.,  Johnson  v.  Drew  Mun.  Sep.  School  Dist.,  No.  GC  7315-K  (N.D.  Miss., 
filed  Feb.  8,  1973)  . 

z?*See  Pervis  v.  LaMarque  Indep.  School  Dist.,  466  F.2d  1054   (5th  Cir.  1972)  . 

275Compaie  Black  Students  of  North  Fort  Myers  Jr.  -  Sr.  High  School  v.  Wil- 
liams, 470  F.2d  957  (5th  Cir.  1972)  ,  with  Pervis  v.  LaMarque  Indep.  School  Dist., 
466  F.2d  1054  (5th  Cir.  1972)  . 

^Compare  Sherling  v.  Townely,  464  F.2d  587  (5th  Cir.  1972)  and  Karr  v.  Schmidt, 
460  F.2d  609  (5th  Cir.  1972) ,  with  Landsdale  v.  Tyler  Jr.  College,  470  F.2d  659  (5th 
Cir.  1972). 

277£.gv  Bazaar  v.  Fortune,  No.  WC  72-28-K  (N.D.  Miss.  May  18,  1972)  ,  aff'd,  No. 
72-2175  (5th  Cir.  Feb.  27,  1973)  ;  Stacy  v.  Williams,  306  F.  Supp.  963   (N.D.  Miss.  1969)  . 

278See,  e.g.,  Brown  v.  Coffeeville  Consol.  School  Dist.  No.  WC-7047-K  (N.D.  Miss. 
Sept.   19,  1970). 

279/d. 

280Miss.  Code  Ann.  §  6800-11(1)     (Supp.   1972)    which  reads  in  part,  "The  resi- 
dence of  a  person  less  than  twenty-one    (21)    years  of  age  is  that  of  the  father." 
ssilnterview  with  Bill  Joyner,  March  20,  1973. 


388  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

student  was  born  in  Lafayette  County  and  had  lived  there  all  his  life 
with  his  mother,  however,  at  a  very  early  age  the  child's  father  had 
deserted  the  family  and  had  moved  to  another  state.  Since  under  the 
terms  of  the  statute,  the  child's  residence  was  that  of  his  father,  the 
student  was  classified  as  a  non-resident.  The  University  later  offered 
the  student  a  special  scholarship  to  cover  his  out-of-state  tuition,  but 
not  before  suit  was  filed.282 

In  other  less  dramatic  cases  the  University  has  classified  students 
as  non-residents  for  tuition  purposes  where  the  students  had  moved  to 
Mississippi,  paid  state  taxes,  married,  and  obtained  employment  in 
Mississippi.  Even  though  these  students  have  declared  an  intention 
to  remain  in  Mississippi,  and  to  make  it  their  home,  the  state  univer- 
sities have  assessed  out-of-state  tuition.283 

The  question  of  resident  status  has  arisen  in  another  context  equally 
important  to  students.  With  the  passage  of  the  Voting  Rights  Amend- 
ment284 most  college  students  became  eligible  to  vote  in  federal  elections. 
However,  some  registrars  have  refused  to  accept  student  voting  applica- 
tions because  the  students  were  viewed  as  transients.285  Even  when  the 
applications  are  initially  accepted  by  the  registrar,  the  students  are  re- 
quired to  submit  to  hearings  before  the  election  commission,  require- 
ments rarely  imposed  on  non-students.286  Two  suits  were  filed  in  north 
Mississippi  contesting  these  practices.  Injunctive  relief  was  obtained  in 
one,287  and  refused  in  the  other.288 


III.  Conclusion 

The  review  of  cases  in  this  article  does  not  purport  to  cover  all  of 
the  litigation  of  the  poverty-civil  rights  lawyers  in  Mississippi.  The 
cases  in  each  category  were  selected  as  being  fairly  representative  of  the 
work  in  that  field.  Our  objectives  have  been  to  demonstrate  the  breadth 
of  the  practice  and  to  call  attention  to  the  significant  changes  which 
have  occurred,  not  so  much  by  planning  or  design,  but  in  response  to 
critical  needs  of  minority  client  groups.  There  has  been  no  attempt  to 
measure  the  impact  of  the  litigation  in  precise  terms.  We  do  know  that 

282/d. 

283This  information  is  taken  from   an  otherwise  confidential  file  in   the  North 
Miss.  Rural  Legal  Ser.  office  in  Oxford,  Miss. 
2S4U.S.  Const,  amend.  XXVI. 

285Horne  v.  Rackley,  No.  EC  72-105-S    (N.D.  Miss.,  filed  Oct.  2,  1972). 
286Frazier   v.   Callicutt,   No.   WC   7277-S    (N.D.    Miss.    Oct.    11,    1972). 
287No;  EC  72-105-S. 
288No,  WC  7277-S.. 


1973]  REPRESENTING  THE  UNREPRESENTED  389 

Triplett  v.  Cobb289  had  the  potential  of  directly  affecting  27,316 
people290  but  the  nature  of  that  particular  case  allowed  for  a  precise 
mathematical  report.  The  impact  of  the  other  cases  is  more  difficult  to 
measure.  All  we  can  hope  to  do  is  demonstrate  that  some  of  the  more 
visible  bastions  of  racial  and  economic  discrimination  have  been  success- 
fully challenged  and  will  continue  to  be  challenged  in  the  future. 

A  frequently  debated  issue,  both  within  and  without  the  public 
interest  sector,  is  the  selection  of  the  subject  matter  of  public-interest 
practice.  Why  are  certain  cases  brought?  There  is  no  single  answer.  One 
answer  is  that  in  a  polarized  situation  some  people  and  causes  simply 
are  not  able  to  obtain  local  counsel.  In  such  a  situation  many  of  the 
fine  jurisdictional  lines  are  blurred  and  matters  not  ordinarily  identified 
as  poverty  or  civil  rights  fall  to  public-interest  practitioners  by  default. 
A  more  important  and  frequently  overlooked  answer  is  that  the  poverty- 
civil  rights  lawyers,  like  all  other  lawyers,  have  clients  who  make  de- 
mands upon  them  and  to  whom  they  must  be  responsive.  Our  experience 
has  been  that  the  clients  set  priorities,  not  the  lawyers.  The  cases  re- 
viewed in  this  article  have  been  filed  and  tried  in  direct  response  to 
client's  demands  for  assistance,  usually  in  a  situation  of  crisis.  The 
mythical  allegation  that  public-interest  lawyers  are  "sociological  schem- 
ers" is  just  that  —  mythical.  If  the  poverty-civil  rights  lawyers  in 
Mississippi  deserve  criticism  it  should  be  for  not  providing  their  clients 
with  the  preventive  type  of  counsel  that  private  practitioners  provide 
their  clients  in  business  and  industry.291 

We  have  also  sought  to  reveal,  from  the  vantage  point  of  hindsight, 
some  repercussions  resulting  from  the  failure  of  the  organized  bar  in 
Mississippi  to  provide  legal  representation  to  minority  groups  during 
a  period  of  social  change.  The  net  result  is  that  more  change  has  taken 
place  than  would  otherwise  have  occurred,  which  is  probably  as  it 
should  be.  In  citing  lack  of  available  counsel  as  a  major  reason  for  the 
development  of  the  public-interest  groups  we  are  not  being  judgmental. 
We  recognize  the  fact  that  even  those  private  practitioners  who  are  in- 

289331  F.  Supp.  652   (N.D.  Miss.  1971)  . 

290Defendant's  compliance  statement,  filed  subsequent  to  the  court's  order,  stated 
that  "on  or  before  August  31,  1971,  there  was  mailed  to  27,316  persons  a  notice  of 
their  eligibility  for  medicaid  payments  in  compliance  with  paragraph  4  of  the  court 
order  of  July  29,  1971." 

29iThis  article  has  dealt  with  litigation  only.  The  work  of  the  poverty  legal 
services  programs  in  providing  legal  advice  and  guidance  for  community  and  eco- 
nomic development  projects;  i.e.,  non-profit  corporations,  credit  unions,  cooperatives 
of  various  types,  child  day-care  centers,  and  new  business  organizations  developed 
by  poor  people  is  another  subject  altogether. 


390  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

clined  to  do  so,  often  are  not  able  to  provide  the  type  of  representation 
that  minority  groups  need.  In  our  complex  era  of  specialization  they 
have  neither  the  necessary  rapport  and  identity  with  the  client  groups 
nor  the  expertise  to  provide  the  type  of  representation  that  is  needed. 
It  therefore  necessarily  follows  that  if  the  organized  bar  in  the  state 
is  to  help  make  our  judicial  system  work  as  it  should,  it  must  follow 
the  lead  of  the  American  Bar  Association  and  support  the  continuation 
of  the  public-interest  groups  in  order  that  they  provide  the  kind  of 
representation  for  minority  groups  which  the  bar  cannot  itself  provide. 
Instead  of  seeking  to  curtail  aggressive  legal  services  for  minority  groups, 
the  organized  bar  should  provide  both  moral  and  financial  support  for 
the  continuation  of  public-interest  groups.  Only  by  so  doing  will  the 
bar,  as  an  organized  professional  group,  have  a  part  in  making  our  ad- 
versary system  work  for  everyone. 


COUNTY  REDISRICTING  IN  MISSISSIPPI:  CASE 
STUDIES  IN  RACIAL  GERRYMANDERING 

Frank  R.  Parker* 

I.  Introduction 

In  Reynolds  v.  Sims,1  the  United  States  Supreme  Court  established 
a  new  constitutional  right  when  it  ruled  that  the  equal  protection 
clause  of  the  14th  amendment  required  that  state  legislative  districts 
be  constructed  "as  nearly  of  equal  population  as  is  practicable,"2  and  in 
Avery  v.  Midland  County3  the  Court  extended  this  "one-man,  one-vote" 
mandate  to  require  equi-populous  districts  for  the  election  of  members 
to  county  governing  boards.  The  purpose  of  these  decisions  was  to  ap- 
proximate more  closely  the  ideal  of  democratic  representation  by  equaliz- 
ing the  political  power  of  persons  residing  in  different  parts  of  the  state 
or  county,  or  as  one  writer  has  put  it,  to  achieve  "equalization  of  citizen 
influence  on  legislative  outcomes."4  In  many  instances,  these  decisions 
will  serve  to  break  the  stranglehold  of  the  less  populated,  conservative 
rural  areas  on  state  and  local  governmental  bodies  and  to  make  those 
bodies  more  responsive  to  progressive,  urban  interests.5  The  irony  is 
that  this  new  constitutional  requirement,  engrafted  by  the  Supreme 
Court  onto  the  post-Civil  War  amendment  which  was  designed  to  secure 
equal  treatment  to  the  freed  slaves,  has  been  used  in  the  South,  par- 
ticularly in  Mississippi,  as  a  mechanism  for  minimizing  and  cancelling 
out  the  voting  strength  of  the  newly  enfranchised  descendants  of  the 
immediate  beneficiaries  of  the  14th  amendment.  As  a  result,  the  new- 
born constitutional  edict,   now  less  than  a  decade  old,   although  con- 

♦Assistant  Chief  Counsel,  Lawyers'  Committee  for  Civil  Rights  Under  Law, 
Jackson,  Mississippi;  member  of  the  bar  of  the  United  States  District  Court  for  the 
District  of  Columbia;  A.B.  1962,  Oberlin  College;   LLB.   1966,  Harvard  Law  School. 

The  author  would  like  to  express  his  appreciation  to  Harold  E.  Sweeney,  Jr., 
Assistant  Professor  of  Political  Science,  Shippensburg  State  College,  Shippensburg, 
Pennsylvania,  and  Henry  J.  Kirksey  of  Jackson,  Mississippi,  for  many  discussions  and 
ideas  which  contributed  to  this  article.  The  views  expressed  herein,  however,  are 
solely  those  of  the  author. 

i377  U.S.  533   (1964) . 

2/d.  at  577. 

3390  U.S.  474    (1968)  . 

^Dixon,  Local  Representation:  Constitutional  Mandates  and  Apportionment  Op- 
tions, 36  Geo.  Wash.  L.  Rev.  693,  711    (1968)  . 

s  R.  McKay,  Reapportionment:  The  Law  and  Politics  of  Equal  Representation 
(1965). 

391 


392  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

ceived  as  a  means  of  accomplishing  a  more  effective  franchise,  is  being 
used  to  debase  black  voting  strength,  so  that  constitutionally  protected 
minorities  find  themselves  "disfranchised  in  result,  although  technically 
casting  an  equal  ballot."6 

The  Civil  Rights  Act  of  19647  and  the  Voting  Rights  Act  of  1965s 
opened  up  opportunities  for  the  registration  of  the  great  majority  of 
eligible  black  citizens  and  for  their  free  and  equal  participation  as  vot- 
ers in  the  political  processes  of  Mississippi.  Statewide  registration  of 
blacks  increased  from  an  estimated  28,500  (7  percent  of  the  total  regis- 
tration)9 to  a  1971  estimate  of  268,000  (28  percent  of  the  total  registra- 
tion) .10  With  this  increased  registration,  blacks  have  gained  election  to 
a  substantial  number  of  justice  of  the  peace  and  constable  positions  and 
also  have  been  elected  mayor  and  members  of  boards  of  aldermen  in 
several  small,  predominantly  black  municipalities.11  But  these  are  not 
positions  of  great  influence,  and  have  little  or  no  effect  on  policy-mak- 
ing by  state  or  county  government.  Blacks  continue  to  be  virtually  ex- 
cluded from  the  legislative,  executive,  and  judicial  branches  of  state 
government— there  remains  only  one  black  representative  in  the  174- 
member  bicameral  Mississippi  Legislature.  At  the  county  level  the  key 
policy-making  body  is  the  board  of  supervisors,  which  exercises  execu- 
tive, legislative,  and  quasi-judicial  powers.12  Each  member  of  the  board 
traditionally  has  been  elected  from  one  of  five  supervisors'  districts  re- 
quired by  state  law  to  be  divided  "with  due  regard  to  equality  of  popula- 
tion and  convenience  of  situation  for  the  election  of  members  .  .  .  ,"13  Of 
the  410  supervisor  positions  in  Mississippi's  82  counties,  blacks  have 
won  only  eight  supervisor  posts  in  seven  counties.14 

eDixon,  supra  note  4,  at  694. 

742  U.S.C.  §§  1971,  1975a-d,  2000a,  2000h6    (1970)  . 
s/d.  §  1973. 

9United  States  Commission  on  Civil  Rights,  Political  Participation  21  (1968) 
(unofficial  statewide  totals  as  of  November,  1964) . 

10INSTITUTE    OF    POLITICS    OF    MISSISSIPPI     (IOP)  ,    VOTER    REGISTRATION    IN    MISSISSIPPI 

(1971)  .  The  racial  statistics  in  this  report  are  IOP  estimates,  based  on  total  figures 
supplied  in  most  instances  by  circuit  clerks,  United  States  Civil  Rights  Commission 
reports,  1970  census  data,  election  returns,  and  other  sources. 

"Mississippi  Center  for  Elected  Officials,  Black  Elected  and  Appointed  Of- 
ficials (1971) .  As  of  the  1971  general  elections,  Mississippi  had  128  black  elected 
officials— more  than  any  other  Southern  State. 

i2Miss.  Const,  art.  6,  §  170;  Miss.  Code  Ann.  §§  2870  et  seq.   (1956)  . 

i3Miss.  Code  Ann.  §  2870  (1956). 

"Black  Officials,  supra  note  11  (seven  blacks  elected  to  supervisor  posts  in  six 
counties)  .  In  addition,  black  candidate  Willie  Bunton  was  elected  to  the  district  three 
supervisor  position  in  a  special  election  in  Issaquena  County  in  November,  1972. 
Delta  Democrat-Times    (Greenville)  ,  Nov.  22,   1972,  at  1. 


1973]  COUNTY  REDISTRICTING  393 

Through  changes  in  the  form  or  shape  of  election  districts,  substan- 
tial efforts  have  been  made  throughout  the  state  to  prevent  blacks  from 
gaining  positions  on  county  boards  of  supervisors:  first,  by  permitting 
counties  to  switch  from  district  elections  to  at-large  countywide  super- 
visor elections— frequently  with  the  effect  of  cancelling  out  the  oppor- 
tunities of  blacks  in  black  majority  districts  to  gain  representation;  and 
second,  by  racial  gerrymandering  of  election  district  boundaries.  In  both 
instances,  these  changes  were  specifically  carried  out  with  the  stated  goal 
of  meeting  Reynolds  and  Avery  requirements,  but  too  frequently  they 
have  had  the  effect  of  diluting  or  cancelling  out  black  voting  strength. 

II.  The  First  Phase:  At-Large  Supervisor  Elections 

Although  state  law  required  that  supervisors'  districts  be  equal  in 
population,  few  if  any  boards  of  supervisors  prior  to  1965  had  redistrict- 
ed  themselves,  with  the  only  reported  redistricting  resulting  from  federal 
district  court  litigation.15  Because  of  growth  and  shifts  of  population 
throughout  the  state,  by  1965  supervisors'  districts  in  most  counties  were 
severely  malapportioned.  The  Mississippi  Legislature  addressed  this 
problem  in  its  first  regular  session  after  the  enactment  of  the  Voting- 
Rights  Act  by  amending  section  2870  of  the  Mississippi  Code  to  permit 
boards  of  supervisors  to  adopt  at-large,  countywide  elections  of  board 
members.16  Several  Mississippi  counties  then  opted  for  at-large  super- 
visors' elections,  purportedly  as  a  cure  for  malapportioned  districts. 
This  solution  has  a  certain  facial  validity,  since  county  wide  voting 
meets  the  Reynolds  test  "that  the  vote  of  any  citizen  is  approximately 
equal  in  weight  to  that  of  any  other  citizen  .  .  .  ,"17  and  in  fact  provides 
for  zero  deviation.18 

The  basic  evil  of  an  at-large  election  scheme  in  a  pluralistic  political 
system,  however,  is  that  it  provides  the  dominant  party  or  faction  with 

isMartinolich  v.  Dean,  256  F.  Supp.  612  (S.D.  Miss.  1966)  ;  Damon  v.  Lauder- 
dale County  Bd.  of  Supervisors,  254  F.  Supp.  918    (S.D.  Miss.  1966)  . 

isAct  of  May  27,  1966,  ch.  290,  §  1,  [1966]  Gen.  Laws  Miss.  374  provided  that, 
"the  board  of  supervisors  of  any  county  may  adopt  an  order  providing  that  all  the 
qualified  electors  of  the  county  shall  be  eligible  to  vote  for  each  member  of  the  board 
of  supervisors  but  each  candidate  shall  be  a  resident  of  the  district  which  he  proposes 
to  represent  .  .  .  ."  An  order  calling  for  at-large  elections  of  county  supervisors  could 
be  blocked  only  by  a  majority  of  the  countywide  vote,  after  a  petition  signed  by  20 
percent  of  the  voters  of  the  county  had  been  filed  within  60  days  of  the  adoption 
and  publication  of  the  order,  putting  the  proposition  up  for  a  vote.  Id.  (section  2870 
was  further  amended  in  1968  and  again  in  1971.  See  note  32  supra). 

^Reynolds  v.  Sims,  377  U.S.  533,  579  (1964)  . 

isZimmer  v.  McKeithen,  467  F.2d  1381,  1382  (5th  Cir.  1972)  ,  petition  for  re- 
hearing en  banc  granted,  Nov.  17,  1972. 


594  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

an  opportunity  to  make  a  clean  sweep  of  all  seats.  This  shortcoming  is 
particularly  acute  and  has  serious  constitutional  dimensions  in  a  racially 
polarized  political  system  where  the  dominant  factor  is  white.  The  1970 
census  indicated  that  there  were  135  black  majority  supervisor  districts 
in  49  of  Mississippi's  82  counties.19  Of  these  49  counties,  only  25  have 
countywide  black  population  majorities,20  only  1 1  have  countywide  black 
registered  majorities,21  and  black  candidates  have  succeeded  in  winning 
only  three  countywide  elections.22 

As  a  result  of  the  implementation  of  the  Voting  Rights  Act,  blacks 
in  a  number  of  Mississippi  counties  gained  a  voting  majority  in  parti- 
cular supervisors'  districts,  but  remained  in  the  minority  countywide; 
thus  the  switch  to  at-large  elections  cancelled  out  black  voting  strength 
in  black  majority  districts,  submerging  these  black  district  majorities 
into  the  white  countywide  vote. 

Adams  County,  clearly  demonstrates  this  phenomenon.  Adams,  one 
of  Mississippi's  oldest  counties,  is  located  on  the  Mississippi  River 
in  the  southwestern  corner  of  the  state.  Its  county  seat  is  Natchez, 
famous  for  its  restored  antebellum  homes.  Subsequent  to  the  passage  of 
the  Voting  Rights  Act,  blacks  quickly  gained  a  voting  majority  in  dis- 
trict four  and  in  1967  elected  a  black  constable  and  justice  of  the 
peace.  However,  in  October,  1966,  the  all-white  Adams  County  Board  of 
Supervisors  took  advantage  of  the  1966  amendment  to  Mississippi  Code 
section  2870  and  adopted  an  order  changing  the  method  of  supervisors' 
election  from  district  to  at-large  elections.  This  submerged  the  district 
four  black  majority  into  the  countywide  white  majority  and  precluded 
the  election  of  any  black  candidate  from  district  four  to  the  board.23 

A.  Section  5  Objections  to  At-Large  Elections 

In  the  Voting  Rights  Act  of  1965,  Congress  wisely  provided  a  pro- 
cedure for  checking  changes  in  election  procedures  which  might  have 
the  effect  of  cancelling  out  black  voting  strength  gained  as  a  result  of 

19U.S.  Dep't  of  Commerce,  Bureau  of  the  Census,  General  Population  Char- 
acteristics: Mississippi  26-79  (1971)  (Census  Publication  PC(1)  -B26)  . 

zoid.  at  26-40. 

21  Voter  Registration  in  Mississippi,  supra  note  10. 

22Black  Officials,  supra  note  11. 

23Facts  taken  from  the  pleadings  in  Marsaw  v.  Patterson,  Civil  No.  1201W  (S.D. 
Miss.,  filed  July  14,  1967) ,  consilidated  with  Fairley  v.  Patterson,  282  F.  Supp.  164 
(S.D.  Miss.  1967)  ,  rev'd  sub  nom.  Allen  v.  State  Bd.  of  Elections,  393  U.S.  544  (1969) 
and  Howard  v.  Adams  County  Bd.  of  Supervisors,  453  F.2d  455  (5th  Cir.  1972)  . 
See  Political  Participation,  supra  note  9,  at  22-23. 


1973]  COUNTY  REDISTRICTING  395 

implementing  the  voter  registration  provisions  of  the  Act.  In  section  5 
of  the  Act,24  Congress  provided  that  whenever  any  state  or  political  sub- 
division, in  which  literacy  and  other  voter  registration  tests  are  suspend- 
ed by  section  4  of  the  Act,25  seeks  to  implement  any  "standard,  practice 
or  procedure  with  respect  to  voting  different  from  that  in  force  or  effect 
on  November  1,  1964,"2G  it  must  first  obtain  a  ruling  from  the  United 
States  District  Court  for  the  District  of  Columbia  or  the  United  States 
Attorney  General  that  such  change  "does  not  have  the  purpose  and  will 
not  have  the  effect  of  denying  or  abridging  the  right  to  vote  on  account 
of  race  or  color."27 

After  the  Adams  County  supervisors  had  enacted  their  switch  to  at- 
large,  countywide  supervisor  elections,  a  black  district  four  voter  who 
had  intended  to  run  for  the  board  filed  an  action  against  the  board 
of  supervisors  and  election  officials  charging  that  the  change  was 
racially  discriminatory,  thus  raising  the  question  of  whether  such  a 
change  in  election  procedures  was  required  to  be  cleared  through  sec- 
tion 5  of  the  Voting  Rights  Act  of  1965  prior  to  implementation.28  The 
district  court  adopted  a  restrictive  interpretation  and  held  that  section 
5  was  limited  to  new  voter  registration  requirements  and  that  the 
change  need  not  be  cleared.29  On  appeal,  however,  the  Supreme  Court 
held  that  because  of  its  potential  for  cancelling  out  black  voting 
strength  in  particular  districts,  the  switch  to  at-large  elections  was  a 
change  in  voting  practices  subject  to  the  section  5  clearance  provisions: 

No.  25  [Fairley  and  Marsaw  v.  Patterson]  involves  a  change 
from  district  to  at-large  voting  for  county  supervisors.  The 
right  to  vote  can  be  affected  by  a  dilution  of  voting  power  as 
well  as  by  an  absolute  prohibition  on  casting  a  ballot.  Voters 
who  are  members  of  a  racial  minority  might  well  be  in  the 
majority  in  one  district,  but  in  a  decided  minority  in  the  county 
as  a  whole.  This  type  of  change  could  therefore  nullify  their 
ability  to  elect  the  candidate  of  their  choice  just  as  would  pro- 
hibiting some  of  them  from  voting.30 

2442  U.S.C.  §  1973c  (1970) . 
25/d.  §  1973b. 
26/d.  §  1973c. 

27/d. 

28Marsaw  v.  Patterson,  Civil  No.  1201W    (S.D.  Miss.,  filed  July  14,  1967) . 

29Fairley  v.  Patterson,  282  F.  Supp.  164  (S.D.  Miss.  1967) ,  rev'd  sub  nom.  Allen 
v.  State  Bd.  of  Elections,  393  U.S.  544    (1969). 

aoAllen  v.  State  Bd.  of  Elections,  393  U.S.  544,  569  (1969)  .  Although  a  majority 
held  that  the  election  change  was  unenforceable  without  prior  section  5  clearance,  the 
Court  declined  to  set  aside  the  1967  elections  held  on  the  basis  of  the  challenged 
statute,  with   three  Justices  dissenting  on   the  grounds   that  refusing  "to  grant   ap- 


396  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

The  Adams  County  Board  of  Supervisors  and  Election  Commission- 
ers were  enjoined  from  further  at-large  supervisors  elections  until  section 
5  clearance  had  been  obtained.31  When  the  Mississippi  Attorney  General 
submitted  the  1966  amendment  to  Mississippi  Code  section  2870  for 
approval,  the  United  States  Attorney  General  imposed  an  objection  to 
its  implementation,  finding,  along  with  two  other  statutory  amendments 
enacted  simultaneously,  that  "these  amendments  had  as  their  purpose 
and  have  had  as  their  effect  the  denial  and  the  abridgment  of  the  right 
to  vote  on  account  of  race  or  color."32 

In  spite  of  the  Allen  v.  State  Board  of  Elections  decision  and  the 
subsequent  section  5  objection,  local  governing  bodies  have  continued 
to  resort  to  at-large  elections.  In  one  case,  involving  the  municipality  of 
Canton,  Mississippi,  a  three-judge  district  court  simply  ignored  Allen 
and  failed  to  require  section  5  clearance  of  the  change.33    From  Jan- 

neliants  .  .  .  the  only  relief  that  will  effectively  implement  the  Act's  purpose  .  .  . 
[permits]  state  officials  selected  in  violation  of  §  5  to  hold  office  until  their  four- 
year  terms  expire  in  1971."  393  U.S.  at  593.  (Harlan,  J.,  joined  by  Marshall  and 
Douglass,   JJ.,  concurring   and   dissenting)  . 

In  dissent,  Justice  Black  harshly  criticized  the  section  5  clearance  provisions, 
saying: 

This  is  reminiscent  of  old  Reconstruction  days  when  soldiers  controlled   the 
South  and  when  those  States  were  compelled  to  make  reports  to  military  com- 
manders of  what  they  did.  The  Southern  states  were  at  that  time  deprived 
of  their  right  to  pass  laws  on  the  premise  that  they  were  not  then  a  part  of 
the  Union  and  therefore  could  be  treated  with  all  the  harshness  meted  out 
to  conquered  provinces.  The  constitutionality  of  that  doctrine  was  certainly 
not  clear  at  that  time.  And  whether  the  doctrine  was  constitutional  or  not, 
I  had  thought  that  the  whole  Nation  had  long  since  repented  of  the  appli- 
cation of  this  "conquered  province"  concept,  even  as  to  the  time  immediately 
following  the  bitter  Civil  War. 
393  U.S.  at  595.  Although  this  criticism  has  been  echoed  in  Mississippi  district  court 
decisions,  see,  e.g.,  Evers  v.  State  Bd.  of  Elections  Comm'rs,  327  F.  Supp.  640,  641    (S.D. 
Miss.  1971) ,  appeal  dismissed,  405  U.S.  1001    (1972) ,  the  section  5  objections  discussed 
herein  indicate  that  the  procedure  has  performed  a  useful  service. 

3iMarsaw  v.  Patterson,  Civil  No.  1201W  (S.D.  Miss.,  filed  July  14,  1967) ,  tempo- 
rary injunction  issued,  April  23,  1969. 

32Letter  from  Jerris  Leonard,  Asst.  U.S.  Attorney  General,  Civil  Rights  Div.,  U.S. 
Dep't  of  Justice,  to  A.  F.  Summer,  Miss.  Attorney  General,  May  21,  1969.  Two  subse- 
quent amendments  to  section  2870,  Act  of  May  27,  1968,  ch.  564,  [1968]  Gen.  Laws  Miss. 
946  and  Act  of  April  5,  1971,  ch.  493,  [1971]  Gen.  Laws  Miss,  615,  also  attempted  to  pro- 
vide for  at-large  supervisors  elections,  but  the  1968  amendment  was  not  cleared  under 
section  5  and  the  1971  amendment  was  objected  to  by  the  United  States  Attorney 
General.  Letter  from  David  L.  Norman,  Asst.  U.S.  Att'y  Gen.,  to  A.F.  Summer,  Miss. 
Att'y  Gen.,  Sept.  10,  1971.  No  effort  was  made  to  overturn  the  United  States  At- 
torney General's  objections  through  a  declaratory  judgment  action  in  the  United 
States  District  Court  for  the  District  of  Columbia  as  provided  by  section  5. 

ssperkins  v.  Matthews,  301  F.  Supp.  565  (S.D.  Miss.  1968)  ,  rev'd,  400  U.S.  379 
(1971)  . 


1973]  COUNTY  REDISTRICTING  397 

uary  1970  to  March  1972  five  Mississippi  counties— two  of  them  with 
black  majority  districts  but  black  population  minorities  county  wide,34 
and  one  with  black  majority  districts  but  a  white  countywide  registered 
majority35— submitted  at-large  election  plans  to  the  United  States  At- 
torney General  for  section  5  clearance.  In  each  case  the  Attorney 
General  has  not  permitted  the  change  to  be  implemented  on  the  ground 
that,  because  of  his  prior  objection  to  the  1966  amendment  to  Miss- 
issippi Code  section  2870,  boards  of  supervisors  lack  the  power,  under 
state  law,  to  enact  such  a  change.36  Further,  in  two  other  recent  cases, 
boards  of  supervisors  have  attempted  to  hold  at-large  supervisor  elections 
without  section  5  clearance— in  one  county  with  a  black  population  ma- 
jority but  without  a  black  registered  majority  and  in  another  with  a 
black  population  majority  but  with  a  white  voting  majority.37  The  De- 
partment of  Justice  failed  to  take  action  to  block  these  changes  as  re- 
quired under  the  Act,38  but  injunctions  were  issued  as  a  result  of  private 
lawsuits.39 

3-iThese  were  Attala  County  (40.3  percent  black)  and  Grenada  County  (43.7 
percent   black) . 

ssCarroll  County  (50.7  percent  black  population,  33.3  percent  black  registration)  . 
The  other  two  counties  submitting  at-large  election  proposals  were  Itawamba  (5.6 
percent  black)  and  Tishomingo  (4.4  percent  black)  ,  neither  of  which  had  black 
population  majority  districts.  All  population  statistics  herein  are  from  1970  census. 
U.S.  Dep't  of  Commerce,  Bureau  of  Census,  General  Population   Characteristics 

(1971)  (Cenus  Publication  PC  (1)  -  B26)  ,  and  all  voter  registration  statistics  are  from 
Voter  Registration  in  Mississippi,  supra  note  10. 

seLetter  from  James  M.  Tolmach,  Civil  Rights  Div.,  U.S.  Dep't  of  Justice,  to 
Frank  R.  Parker,  Mar.  29,  1972. 

s^Leflore  County  (57.8  percent  black  population,  50.0  percent  black  registration) 
and  Issaquena  County,  with  a  black  registered  majority,  but  in  which  no  black  can- 
didates had  been  able  to  gain  countywide  majorities  after  several  races  by  different 
candidates  for  both  supervisor  and  at-large  school  board  positions,  although  several 
candidates  did  gain  majorities  in  the  districts  they  were  running  to  represent.  See 
briefs  filed  in  Hall  v.  Issaquena  County  Bd.  of  Supervisors,  453  F.2d  404  (5th  Cir.  1971). 

3842  U.S.C.  §  1973j  (d)    (1970)  . 

39Hall  v.  Issaquena  County  Bd.  of  Supervisors,  453  F.2d  404  (5th  Cir.  1971) ; 
Moore  v.  Leflore  County  Bd.  of  Election  Comm'rs,  351  F.  Supp.  848  (N.D.  Miss.  1971) 
(three-judge  court)  . 

The  failure  of  the  Civil  Rights  Division  of  the  Department  of  Justice  to  take 
timely  action  to  enjoin  uncleared  switches  to  at-large  elections  is  criticized  in  a  re* 
cent  study  of  Voting  Rights  Act  enforcement.  Washington  Research  Project,  The 
Shameful  Blight:  A  Survival  of  Racial  Discrimination  in  Voting  in  the  South  149 

(1972)  .  On  the  basis  of  these  and  other  examples,  the  report  finds 
responsibility  [for  failure  to  implement  section  5]  also  lies  with  the 
Department  of  Justice,  which  has  failed  to  enforce  vigorously  the  require- 
ments of  section  5  and  to  adopt  quickly  adequate  administrative  procedures, 
has  left  the  bulk  of  section  5  litigation  to  private  parties,  and  has  failed  to 
act  quickly  or  forcefully  enough  when  it  has  resorted  fo  court  enforcement. 

Id.  at  145. 


398  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

The  analysis  of  at-large  voting  efforts  for  members  of  county  gov- 
erning boards  in  Mississippi  shows  that  in  most  cases  such  changes  have 
a  racially  discriminatory  effect,  and  timely  objections  from  the  Depart- 
ment of  Justice  under  the  much  maligned  clearance  provisions  of  section 
5  of  the  Voting  Rights  Act  of  1965  have,  in  many  cases,  prevented  sub- 
stantial dilutions  of  black  voting  strength  from  taking  place.  The  danger 
remains,  however,  given  the  terse  and  unexplained  sentence  in  an 
interlocutory  proceeding  in  the  Mississippi  legislative  reapportionment 
case  that  "[a]  decree  of  the  United  States  District  Court  is  not  within 
reach  of  Section  5  of  the  Voting  Rights  Act,"40  governing  bodies  bent  on 
circumventing  the  section  5  clearance  provisions  will  be  able  to  per- 
suade sympathetic  federal  judges  to  permit  racially  discriminatory  at- 
large  elections  as  an  alternative  to  malapportioned  districts  under  the 
equity  powers  of  the  district  court.  This  occurred  in  at  least  one 
heavily  black  Mississippi  delta  county  in  which  blacks  did  not  have 
a  voting  majority.  The  district  court's  order  was  corrected,  however, 
by  the  United  States  Court  of  Appeals  for  the  Fifth  Circuit  to  allow 
at-large  elections  as  an  interim  measure  only,  to  be  followed  by  new 
supervisor  special  elections  after  the  court  had  approved  a  constitutional 
redisricting  plan.41 

B.  Court  Decisions  On  At-Large  Elections 

Because  at-large  elections  frequently  have  the  effect  of  diluting  the 
voting  strength  of  black  majority  districts,  and  because  of  the  Attorney 
General's  section  5  objections  to  state  legislation  authorizing  conversions 
to  at-large  elections,  federal  courts  in  the  South  generally  have  enjoined 
such  changes42  or  have  permitted  at-large  elections  only  as  an  interim 
measure  pending  redistricting  of  malapportioned  districts,  followed  by 


^oConnor  v.  Johnson,  402  U.S.  690,  691  (1971)  ,  granting  stay  pending  appeal,  un- 
reported district  court  decision  vacated  and  remanded  sub  nom.,  Connor  v.  Williams, 
404  U.S.  549  (1972) . 

4iHall  v.  Issaquena  County  Bd.  of  Supervisors,  453  F.2d  404   (5th  Cir.  1971)  . 

42Henry  v.  Coahoma  County  Bd.  of  Supervisors,  Civil  No.  D.C.  71-50-S  (N.D. 
Miss.  July  7,  1971);  LeBlanc  v.  Rapides  Parish  Police  Jury,  315  F.  Supp.  783  (W.D. 
La.  1969) ,  remanded  sub  nom.  LeBlanc  v.  Rapides  Parish  School  Bd.,  431  F.2d  502 
(5th  Cir.  1970)  ;  Dyer  v.  Love,  307  F.  Supp.  974  (N.D.  Miss.  1969) ;  United  States  v. 
Democratic  Executive  Comm.,  288  F.  Supp.  943  (M.D.  Ala.  1968) ;  Smith  v.  Paris,  257 
F.  Supp.  901  (M.D.  Ala.  1966)  ,  modified  and  aff'd,  386  F.2d  979  (5th  Cir.  1967)  .  But  see 
Sheffield  v.  Itawamba  County  Bd.  of  Supervisors,  439  F.2d  35  (5th  Cir.  1971)  (dictum) 
(at-large  elections  permissible  as  an  alternative  to  malapportioned  districts  where  such 
change  has  no  racial  effect)  . 


1973]  COUNTY  REDISTRICTING  399 

special,  mid-term  elections  on  a  district  basis.43  However,  in  Zimmer  v. 
McKeithen,^  a  recent  Louisiana  case,  the  Fifth  Circuit  approved  a  district 
court  decree  allowing  at-large  elections  for  members  of  the  parish  police 
jury  and  school  board  even  though  the  parish  had  substantial  black 
population  concentrations  but  a  white  registered  majority,  and  in  spite 
of  a  section  5  objection  blocking  the  implementation  of  recent  Louisiana 
legislation  allowing  for  at-large  police  jury  and  school  board  elections.45 
The  justification  advanced  was  that  the  parish  had  a  black  population 
majority.46  Fourteen  Mississippi  counties47  come  within  this  category- 
black  population  majorities  but  white  registered  majorities— and  if  this 
decision  is  allowed  to  stand  it  could  provide  impetus  to  continued  efforts 
in  Mississippi  to  dilute  black  voting  strength  through  at-large  elections. 
Even  if  the  parish  has  a  black  population  majority,  the  fact  that  the 
parish  has  a  white  registered  majority  means  that  at-large  elections  must 
cancel  out  black  voting  strength  concentrated  in  particular  districts. 
Therefore,  the  panel  decision  of  the  Fifth  Circuit  appears  inconsistent 
with  all  prior  decisions  disallowing  at-large  elections  as  a  permanent 
remedy  where  they  have  a  disadvantageous  racial  effect.48 

The  Supreme  Court  in  Allen  v.  State  Board  of  Elections,49  suggested 
that  switches  to  at-large  elections  in  Southern  counties  which  dilute  the 
voting  power  of  black  majority  districts  cannot  withstand  constitutional 

43Hall  v.  Issaquena  County  Bd.  of  Supervisors,  453  F.2d  404  (5th  Cir.  1971) , 
Moore  v.  Leflore  County  Bd.  of  Election  Comm'rs,  Civil  No.  GC  71-84-K  (N.D.  Miss., 
Oct.  18,  1971)  ;  cf  Keller  v.  Gilliam,  454  F.2d  55    (5th  Cir.  1972) . 

±4467  F.2d  1381  (5th  Cir.  1972)  petition  for  rehearing  en  banc  granted  Nov.  17, 
1972. 

4$See  LeBlanc  v.  Rapides  Parish  Police  Jury,  315  F.  Supp.  783,  788-89  (W.D.  La. 
1969) ,  remanded  sub  nom.  LeBlanc  v.  Rapides  Parish  School  Bd.,  431  F.2d  502  (5th 
Cir.  1970). 

•*6467  F.2d  at  1384.  In  dissent,  Judge  Gewin  commented: 

It  is  apparent  to  me  that  the  change  to  elections  at  large  makes  it  substantial- 
ly more  difficult  for  black  voters  to  elect  representatives  than  under  the  tra- 
ditional ward  system  which  Louisiana  law  requires.  The  at-large  election  dilutes 
any  possible  majority  of  black  registered  voters  in  one  or  more  new  and  im- 
partially drawn  wards  with  the  overall  majority  of  white  registered  voters  in  the 
Parish.  It  was  precisely  this  sort  of  dilution  which  caused  the  Attorney  Gen- 
eral to  disapprove  under  §  5  of  the  Voting  Rights  Act  of  1965,  42  U.S.C. 
1973c,  the  Louisiana  statutes  which  sought  to  amend  the  Louisiana  law  to 
allow  at  large  elections  for  school  boards  and  police  juries. 
467  F.2d  at  1386. 

47The  fourteen  counties  with,  black  population  majorities  but  without  black  reg- 
istered majorities  are:   Amite,  Carroll,  Copiah,  Humphreys,  Jefferson  Davis,  Kemper, 
Leflore,  Marshall,  Noxubee,  Panola,  Quitman,  Sharkey,  Washington,  and  Yazoo.  Voter 
Registration  in  Mississippi,  supra  note  10. 
*8See  cases  cited  notes  42  and  43  supra. 
49393  U.S.  544  (1969)  . 


400  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

scrutiny.  This  decision  generally  has  been  followed  by  federal  courts  in 
the  South  in  striking  down  at-large  voting  schemes  which  have  such  an 
effect.  How  are  these  decisions  to  be  reconciled  with  the  Supreme 
Court's  more  recent  decision  in  Whit  comb  v.  Chavis,50  in  which  the 
Court  reversed  a  district  court  decision  voiding  multi-member  legislative 
districts  in  the  face  of  a  district  court  finding  that  such  districts  dilute 
ghetto  voting  strength?  In  Whitcomb  a  three-judge  district  court  had 
found  that  the  Indiana  multi-member  district  legislative  scheme,  in 
effect  since  1851  and  by  which  eight  of  31  senatorial  districts  and  25 
of  the  39  house  districts  were  represented  by  two  or  more  legislators 
elected  at  large  by  all  the  voters  of  the  district,  violated  constitutional 
guarantees  against  racial  abridgment  of  the  right  to  vote  because  of 
its  effect  in  cancelling  out  ghetto  black  voting  strength,  particularly  in 
Marion  County  (Indianapolis).  The  Supreme  Court  reversed  on  this 
issue.  Noting  that  plaintiffs  had  conceded  that  Indiana's  multi-member 
district  was  not  intentionally  designed  to  dilute  the  votes  of  minorities,51 
the  Court  held  that  the  underrepresentation  of  blacks  in  the  state  legis- 
lature which  resulted  from  this  plan  "emerges  more  as  a  function  of  los- 
ing elections  than  of  built-in  bias  against  poor  Negroes.  The  voting 
power  of  ghetto  residents  may  have  been  'cancelled  out'  as  the  District 
Court  held,  but  this  seems  a  mere  euphemism  for  political  defeat  at  the 
polls."52 

The  key  distinction  between  Whitcomb  and  the  Mississippi  ex- 
perience is  the  Court's  recognition  in  Whitcomb  that  the  Indiana 
multi-member  district  scheme  represented  a  long-standing  state  policy 
and  the  Court's  emphasis  on  the  absence  of  any  evidence  of  a  past  his- 
tory of  racial  discrimination  in  voting.53  While  at-large  elections  may  be 
tolerable  when  conceived  and  first  implemented  in  a  racially  neutral 
vacuum  and  when  they  have  no  directly  provable  racial  effect,  they  are 
certainly  intolerable  and  constitutionally  prohibited  when  they  have  the 
effect  of  perpetuating  past  racial  discrimination  in  voting  practices. 
The  Supreme  Court  itself  recently  endorsed  this  distinction  in  Taylor 
v.  McKeithen™  in  which  plaintiffs  challenged  an  effort  to  racially 
gerrymander  legislative  district  lines  in  New  Orleans.  In  an  instructive 
footnote,  the  Court  held  the  Whitcomb  decision  inapplicable,  saying: 

50403    U.S.    124    (1971)  ,   rev'g   305   F.   Supp.    1364    (S.D.    Ind.    1969)    (three-judge 
court)  . 

si/d.  at  149. 

52/d.  at  153. 

53/d.  at  149-50. 

54407  U.S.  191    (1972)  . 


1973]  COUNTY  REDISTRICTING  401 

The  important  difference  ...  is  that  in  Whitcomb  it  was 
conceded  that  the  State's  preference  for  multi-member  districts 
was  not  rooted  in  a  racial  discrimination  [citation  omitted]. 
Here,  however,  there  has  been  no  such  concession  and,  indeed, 
the  District  Court  found  a  long  "history"  of  bias  and  franchise 
dilution   in   the  State's  traditional  drawing  of  district  lines.55 

Where  newly  enfranchised  black  voters  may  be  continually  outvoted  by 
white  voting  majorities  in  at-large  districts,  the  effect,  as  the  Court  noted 
in  Allen,  is  the  same  as  continuing  to  prevent  blacks  from  voting  at  all.56 
Although  not  specifically  articulated,  this  rationale  perhaps  persuaded 
the  Supreme  Court  to  express  a  preference  against  multi-member  legisla- 
tive districts  in  the  recent  Mississippi  legislative  reapportionment  case  of 
Connor  v.  Johnson*1  and  has  recently  provided  the  express  basis  in  two 
recent  three-judge  district  court  decisions  for  voiding  multi-member 
legislative  districts  in  Alabama  and  Texas.58 

The  Mississippi  experience  shows  that  at-large  voting  may  constitute 
a  partially  subtle  form  of  racial  gerrymandering,  and,  particularly  when 
it  occurs  on  the  heels  of  a  prior  history  of  racial  discrimination  in  vot- 
ing, violates  constitutional  guarantees.  Implicit  in  these  decisions  is  the 
notion  that  since  blacks  have  now  been  granted  the  right  freely  to  reg- 
ister and  vote  by  federal  legislation,  Southern  States  are  under  an  affir- 
mative obligation  to  draw  election  district  lines  in  a  manner  which  does 
not  cancel  out  newly  gained  black  voting  strength.59 


55407  U.S.  at  n.3. 

56Allen  v.  State  Bd.  of  Elections,  393  U.S.  544    (1969)  . 

57402  U.S.  690  (1971)  (interlocutory  order  pending  appeal)  ,  decision  on  merits 
sub  nom.,  Connor  v.  Williams,  404  U.S.  549  (1972)  . 

58Sims  v.  Amos,  336  F.  Supp.  924  (M.D.  Ala.  1972)  (three-judge  court) ,  aff'd,  409 
409  U.S.  942  (1972)  ;  Graves  v.  Barnes,  343  F.  Supp.  704  (W.D.  Tex.  1972)  (three- 
judge  court)  (Graves  was  a  consolidated  case  in  the  district  court.  On  appeal,  the 
Supreme  Court  granted  independent  relief  in  the  separate  cases.)  ,  prob.  juris, 
noted  sub  nom.  Bullock  v.  Register,  409  U.S.  840  (1972)  ,  aff'd  per  curiam  sub  nom. 
Archer  v.  Smith,  409  U.S.  840  (1972)  (only  as  to  gerrymandering  against  Republican 
voting  strength  in  Bexar  County)  ,  stay  of  injunction  denied  sub  nom.  Bullock  v. 
Carter,  405  U.S.  1201  (1972)  (injunction  enjoining  multi-member  districts)  .  For 
a  recent  discussion  of  these  cases,  see  Derfner,  Multi-Member  Districts  and  Black 
Voters,  2  Black  L.J.  120  (1972)  . 

sVT/he  Fifth  Circuit  recently  has  reversed  the  dismissal  of  a  complaint  challenging 
the  long-standing  practice  of  at-large  election  of  members  of  the  Dallas,  Texas  City 
Council  and  held  that  the  practice  would  violate  constitutional  guarantees  if  it 
can  be  shown  that  at-large  voting  results  in  a  denial  of  "effective  participation  in 
the  political  process."  Lipscomb  v.  Johnson.  459  F.2d  335,  339   (5th  Cir.  1972)  . 


402  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

III.     The  Second  Phase:  Gerrymandering  of  District  Boundaries 

As  the  above  discussion  indicates,  switching  to  at-large  elections  can. 
be  a  form  of  racial  gerrymandering  where  the  result  is  to  permit  white 
countywide  majorities  to  sweep  all  the  seats  in  counties  where  blacks,  as 
a  minority  of  the  voting  population,  are  concentrated  in  particular  dis- 
tricts. Yet  conversion  to  a  single-member  district  system  may  not  wholly 
avert  the  danger  of  continued  white  domination.  As  one  political  an- 
alyst has  sagely  observed,  "It  takes  but  slight  reflection  to  realize  that  if 
the  dominant  party's  supporters  are  spread  relatively  evenly,  that  party 
can  win  each  district  under  a  single-member  district  system,  too."60  Thus, 
even  under  a  requirement  of  district  elections,  "it  may  now  be  perceived 
that  a  mandate  to  reapportion,  coupled  with  a  rule  of  tight  arithmetic 
equality  for  all  districts,  creates  new  opportunities  for  unfairness  in 
representation   (gerrymandering)  ."61 

Having  generally  been  deterred  from  pursuing  at-large  elections  by 
the  Attorney  General's  section  5  objections,  it  now  appears  that  some 
Mississippi  counties  are  resorting  to  gerrymandering  of  supervisor  district 
boundaries,  with  the  stated  goal  of  correcting  longstanding  malapportion- 
ment of  districts,  but  with  the  effect  of  diluting  black  voting  strength.62 
The  results  obtained  in  several  of  these  recent  redistricting  plans  can 
best  be  described  as  "cracking,  packing,  and  stacking."63   The  "cracked" 

60R.  Dixon,  Democratic  Representation:  Reapportionment  in  Law  and  Poli- 
tics 503    (1968) . 

ei/d.  at  457. 

62Numerous  articles  have  been  written  on  the  definition  and  criteria  of  racial 
and  other  gerrymandering,  concentrating  primarily  on  the  criteria  of  compactness, 
contiguity,  and  adherence  to  pre-existing  political  subdivision  boundaries.  E.g.,  Ed- 
wards, The  Gerrymander  and  "One  Man,  One  Vote",  46  N.Y.U.L.  Rev.  879  (1971) ; 
Sickels,  Dragons,  Bacon  Strips  and  Dumbbells— Who's  Afraid  of  Reapportionment,  75 
Yale  L.J.  1300  (1966)  ;  Schwartzberg,  Reapportionment,  Gerrymanders,  and  the  No- 
tion of  "Compactness",  50  Minn.  L.  Rev.  443  (1966) ;  Weaver  &  Hess,  A  Procedure  for 
Nonpartisan  Districting:  Development  of  Computer  Techniques,  73  Yale  L.J.  288 
(1963)  ;  Krastin,  The  Implementation  of  Representative  Government  in  a  Democracy, 
48  Iowa  L.  Rev.  549  (1963);  Vickery,  On  the  Prevention  of  Gerrymandering,  76  Pol. 
Sci.  Q.  105  (1961)  ;  Reock,  Measuring  Compactness  as  a  Requirement  of  Legislative 
Appointment,  5  Midwest  J.  Pol.  Sci.  70  (1961) .  Other  recent  writers  have 
considered  the  underrepresentation  of  blacks,  or  racial  malrepresentation,  to  be  the 
essence  of  racial  gerrymandering.  R.  Dixon,  Democratic  Representation:  Reappor- 
tionment in  Law  and  Politics  (1968)  ;  Dixon,  The  Court,  the  People,  and  "One  Man, 
One  Vote",  in  Reapportionment  in  The  1970's  (N.  Polsby  ed.  1971) ;  Gilliland,  Racial 
Gerrymandering  in  the  Deep  South,  22  Ala.  L.  Rev.  319   (1970) . 

63These  terms  were  first  coined  in  the  non-racial  context  of  population  malap- 
portionment and  urban  gerrymandering  in  Tyler,  Court  versus  Legislature:  The  Socio- 
Politics  of  Malapportionment,  27  Law  &  Contemp.  Prob.  390,  400    (1962)  . 


1973]  COUNTY  REDISTRICTING  403 

district,  in  racial  gerrymandering  terms,  is  an  area  of  heavy  black  con- 
centration, often  within  a  municipality  and  frequently  formerly  included 
within  a  single  district,  fragmented  into  separate  pieces,  each  of  which 
is  attached  to  a  larger  white  majority,  often  contained  in  the  surrounding 
rural  area.04  The  "packed"  district  is  one  into  which  black  population 
and  black  voters  are  concentrated,  containing  many  more  black  persons 
than  neighboring  districts:  the  gerrymandering  in  Wright  v.  Rocke- 
feller65 is  a  good  example.  The  result  may  or  may  not  be  invidiously 
discriminatory,  depending  on  voting  patterns.66  The  "stacked"  district 
dilutes  black  voting  strength  by  combining  in  irregularly  shaped  dis- 
tricts, which  abandon  pre-existing  boundaries,  concentrations  of  black 
population  (often  large  enough  for  separate  representation)  with  greater 
concentrations  of  white  population  to  create  overall  white  majorities.67 
The  "stacked"  district  often  is  the  most  obvious  form  of  gerrymander, 
described  by  the  originator  of  the  term  as  "a  delicately  carved  creature, 
resembling  nothing  more  than  the  partisan  and  rapacious  soul  of  his 
political  creator."68 

The  proposed  redistricting  plans  for  Yazoo  and  Warren  Counties  in 
Mississippi  provided  excellent  examples  of  "cracked"  districts.  In  each 
instance,  former  black  majority  districts  were  cracked  under  the  new 
redistricting  plan,  and  segments  of  black  population  concentration  were 
fragmented  among  several  new  districts.  Significantly,  in  each  case  the 
area  of  heaviest  black  concentration  was  within  the  major  municipality 
in  the  county,  and  under  the  new  plan  this  heavy  urban  black  population 
concentration,  formerly  entirely  within  black  majority  districts,  was  split 

e^Although  the  term  was  not  used,  "cracked"  districts  were  ruled  unconstitution- 
al in  Bussie  v.  Governor  of  Louisiana,  333  F.  Supp.  452  (E.D.  La.  1971) ,  modified  and 
aff'd  sub  nom.  Bussie  v.  McKeithen,  457  F.2d  796  (5th  Cir.  1971) ,  vacated  sub  nom. 
Taylor  v.  McKeithen,  407  U.S.  191  (1972),  and  Klahr  v.  Williams,  339  F.  Supp. 
922,  927  (D.  Ariz.  1972) ,  and  in  a  non-racial  context  in  Troxler  v.  St.  John  the 
Baptist  Parish  Police  Jury,  331  F.  Supp.  222  (E.D.  La.  1971)  .  To  date,  "cracking" 
of  black  majority  districts  has  not  been  held  unconstitutional  by  the  Fifth  Circuit 
or  the  Supreme  Court,  although  this  conclusion  may  be  implied  from  the  Supreme 
Court's  recent  decision  in  Taylor  v.  McKeithen,  407  U.S.  191    (1972)  . 

65376  U.S.  52  (1964) . 

repacking  was  attacked  in  Wright  because  it  prevented  New  York  blacks  from 
influencing  the  outcomes  in  more  than  one  Congressional  district.  In  the  South,  where 
bloc  voting  along  racial  lines,  with  some  exceptions,  generally  prevails,  packing  may 
be  the  only  means  by  which  blacks  can  elect  representatives  of  their  choice. 

•"Although  the  term  was  not  used,  "stacked"  districts  were  ruled  unconstitutional 
in  Sims  v.  Baggett,  247  F.  Supp.  96  (M.D.  Ala.  1965) ,  but  have  yet  to  be  unequivoc- 
ally struck  down  by  the  Fifth  Circuit  or  the  Supreme  Court.  See  Politicau  Participa- 
tion, supra  note  9,  at  27-30. 

esTyler,  supra  note  63,  at  401. 


404  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

among  all  five  districts,  each  new  district  combining  an  urban,  heavily 
black  segment  with  an  outlying  rural,  predominantly  white  segment. 
The  result  in  each  case  was  a  devastating  dilution  of  black  voting 
strength,  destroying  black  district  majorities  and  creating  new  white 
district  majorities. 

Yazoo  County.  Prior  to  voluntary  redistricting  by  the  board  of  su- 
pervisors in  1970,  the  urban  black  concentration  in  the  county  seat, 
Yazoo  City  (60  percent  black) ,  had  been  included  entirely  within  district 
three,  but  under  the  redistricting  plan  this  urban  black  concentration 
was  fragmented  and  dispersed  among  all  five  districts,  none  of  which 
could  be  described  as  compact  (see  Appendix  A)  .69  The  submission  of 
the  plan  to  the  Department  of  Justice  led  to  a  section  5  objection  on 
grounds  that  the  resulting  districts,  devised  to  correct  malapportionment, 
were  themselves  malapportioned  and  diluted  black  voting  strength.70 

Warren  County.  Three  of  the  five  supervisors'  districts  in  Warren 
County,  all  with  black  population  majorities,  had  since  1929  been  lo- 
cated entirely  within  the  corporate  limits  of  the  county  seat  and  princi- 
pal municipality,  Vicksburg  (49.3  percent  black) .  But  the  1970  re- 
districting plan  abandoned  this  historic  pattern  and  combined  rural  and 
urban  areas  in  all  five  districts,  dividing  this  heavy  black  concentration 
in  Vicksburg  among  five  uncompact  districts  (see  Appendix  B)  .71  Upon 
submission  of  the  redistricting  plan  to  the  Department  of  Justice,  two 
separate,  but  similarly  based  section  5  objections  were  lodged  because 
"substantial  and  apparently  irreconcilable  discrepancies"  between  the 
racial  population  statistics  submitted  by  the  board  of  supervisors  (which 
were  not  based  on  census  data,  but  a  privately-conducted  house  count 
survey)    and  1970  census  data  prevented  the  Justice  Department  from 


69Facts  taken  from  1970  census  data  and  deposition  of  Griffin  Norquist,  Attorney 
from  the  Yazoo  County  Board  of  Supervisors,  and  L.  M.  Phillips,  President  of  the 
Board,  March  21,  1972,  on  file  in  Howard  v.  Adams  County  Bd.  of  Supervisors,  Civil 
No.  72-2596  (5th  Cir.  May  5,  1971)  . 

?°Letter  from  David  L.  Norman,  Asst.  Attorney  General,  Civil  Rights  Div.  U.S. 
Dep't  of  Justice,  to  Griffin  Norquist,  Attorney  for  the  Yazoo  County  Board  of 
Supervisors,  July  19,  1971.  In  this  letter  Norman  stated: 

Our  difficulty  is  compounded  by  the  fact  that  the  district  boundary  lines  with- 
in the  City  of  Yazoo  unnecessarily  divide  the  black  residential  areas  into  each 
of  the  five  districts.  These  lines  do  not  seem  to  be  related  to  numeric  popu- 
lation configurations,  or  to  considerations  for  district  compactness,  or  to  a 
standard  of  regularity  of  shape. 

"iFacts  taken  from  1970  census  data  and  deposition  of  Landman  Teller,  former 
Attorney  for  the  Warren  County  Board  of  Supervisors,  and  P.T.  Hullum,  former 
President  of  the  Board,  April  11,  1970,  on  file  in  Howard  v.  Adams  County  Bd.  of 
Supervisors.  Civil  No.  72-2596  (5th  Cir.,  filed  June  20,  1972)  . 


1973]  COUNTY  REDISTRICTING  405 

determining  "if  any  dilution  of  such  [black  population  majorities  in  dis- 
tricts two,  three,  and  four]  has  a  discriminatory  purpose  or  effect."72 

On  a  third  try  Warren  County  authorities  did  succeed  in  producing 
accurate  population  statistics  for  their  new  districts.  On  the  basis  of 
those  figures  the  Department  of  Justice  found  the  plan  to  be  racially 
discriminatory  and  objected  to  its  implementation: 

On  the  basis  of  this  information  we  are  unable  to  conclude,  as 
we  must  under  Section  5,  that  the  changes  submitted  will  not 
have  a  prohibited  racial  effect  in  Warren  County. 

. . .  Our  evaluation  of  the  redistricting  plan  . . .  reveals  that  the 
effect  of  the  proposed  district  boundary  lines  is  to  fragment 
areas  of  black  population  concentrations,  thereby  minimizing 
the  total  number  of  black  persons  residing  in  each  of  the  dis- 
tricts and  diluting  black  voting  strength  in  Warren  County. 
Moreover,  it  does  not  appear  that  the  district  lines  are  drawn 
as  they  are  because  of  any  compelling  governmental  need  and 
they  do  not  reflect  population  concentrations  in  the  county  or 
considerations  of  district  compactness  or  regularity  of  shape.73 

Leake  County.  The  Leake  County  redistricting  plan  provides  a 
startling  example  of  "stacked"  districts  in  Mississippi.  Prior  to  redistrict- 
ing, blacks  had  enjoyed  a  two-to-one  majority  in  district  three,  but  the 
new  boundary  of  that  district  under  the  1970  redistricting  plan  departed 
its  historic  course  and  hooked  around  the  black  population  concentration 
in  the  principal  town  of  Carthage  to  consolidate  white  population  con- 
centrations and  to  form  a  perfect  number  "1"  (see  Appendix  C)  .74 
Although  the  redistricting  had  been  ordered  by  a  federal  district  court, 
the  district  judge  wisely  ordered  it  submitted  for  section  5  clearance  by 
the  Justice  Department,75  which  objected  to  its  implementation  since 
"the  Negro  majority  in  the  existing  District  3  has  been  changed  to  a 
white  majority  in  the  proposed  District  3"  in  the  face  of  "alternative 
means  of  redistricting  which  would  probably  not  have  this  effect."76 

72Letter  from  David  L.  Norman,  Asst.  Attorney  General,  Civil  Rights  Div.,  U.S. 
Dep't  of  Justice,  to  Landman  Teller,  former  Attorney  for  the  Warren  County  Board 
of  Supervisors,  Aug.  23,  1971. 

73Letter  from  J.  Stanley  Pottinger,  Asst.  Attorney  General,  Civil  Rights  Div.,  U.S. 
Dep't  of  Justice,  to  John  W.  Prewitt,  Attorney  for  the  Warren  County  Board  of 
Supervisors,  Feb.  13,  1973. 

74Facts  taken  from  1970  census  data  and  the  pleadings  in  Scott  v.  Burkes,  Civil 
No.  4782    (S.D.  Miss.,  filed  Nov.  13,  1970) . 

75Scott  v.  Burkes,  Civil  No.  4782    (S.D.  Miss.,  filed  Nov.  13,  1970). 

76Letter  from  Jerris  Leonard,  Asst.  Attorney  General,  Civil  Rights  Div.,  U.S.  Dep't 
of  Justice,  to  J.  Edward  Smith,  Attorney  for  the  Leake  County  Board  of  Supervisors, 
Jan.  8,  1971.  Subsequently,  the  district  boundaries  within  the  Town  of  Carthage  were 
altered  to  meet  the  section  5  objection.  Letter  from  Tolmach  to  Parker,  supra  note  36. 


406  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Hinds  County.  The  Hinds  County  redistricting  plan  was  a  combi- 
nation of  cracking  and  stacking.  Prior  to  redistricting,  the  heaviest  black 
population  concentration  in  the  state,  located  within  the  capitol  city  of 
Jackson  (59,773  black  persons,  39.6  percent  of  Jackson's  population) , 
had  already  been  divided  among  three  of  the  five  supervisors'  districts. 
But  the  remaining  two  districts  in  the  rural  area  had  been  predominantly 
black.  Under  the  1969  redistricting  plan,  undertaken  pursuant  to  court 
order,  Hinds  County  blacks  lost  both  black  majority  districts  under  a 
plan  which,  through  stacking,  combined  black  concentrations  with  great- 
er white  concentrations.  The  plan  also  cracked  the  heavy  black  concen- 
tration in  Jackson  among  all  five  districts  which  combined  rural  and 
urban  areas  (see  Appendix  D)  ,77  After  Hinds  County  authorities  were 
persuaded  by  the  Department  of  Justice  to  submit  the  plan  for  section  5 
clearance,  the  following  objection  was  lodged: 

[W]e  find  that  the  district  boundary  lines  are  located  within  the 
City  of  Jackson  in  a  manner  that  suggests  a  dilution  of  black 
voting  strength  will  result  from  combining  a  number  of  black 
persons  with  a  larger  number  of  white  persons  in  each  of  the 
five  districts  .  .  .  such  district  lines  within  the  City  of  Jackson 
were  not  based  on  any  compelling  governmental  need  and  ap- 
pear to  be  located  fortuitously  without  any  compelling  govern- 
mental justification  for  their  location.  Our  analysis  persuades 
me  that  the  specific  location  of  the  lines  is  not  related  to  nu- 
meric population  configurations  or  considerations  for  district 
compactness  or  regularity  of  shape.78 

77Facts  taken  from  1970  census  data  and  the  pleadings  in  Kirksey  v.  Hinds  County 
Bd.  of  Supervisors,  Civil  No.  4939    (S.D.  Miss.,  filed  July  25,  1971) . 

78Letter  from  David  L.  Norman,  Asst.  Attorney  General,  Civil  Rights  Div.,  U.S. 
Dep't  of  Justice,  to  Thomas  Watkins,  Attorney  for  the  Hinds  County  Board  of  Super- 
visors, July  14,  1971.  See  Hearings  on  the  Enforcement  of  the  Voting  Rights  Act  Before 
the  Civil  Rights  Oversight  Subcom.  of  the  House  Comm.  on  the  Judiciary,  92d  Cong., 
1st  Sess.,  ser.  8,  at  334   (1971)    [hereinafter  cited  as  Enforcement  Hearings]. 

In  subsequent  litigation  filed  by  private  parties,  the  district  court  held  that  the 
Hinds  County  supervisors'  districts,  as  established  by  the  objected-to-plan,  failed  to 
provide  substantial  population  equality  among  the  five  districts  on  the  basis  of  the 
1970  census,  and  ordered  the  development  of  a  new  redistricting  plan.  Kirksey  v. 
Hinds  County  Bd.  of  Supervisors,  Civil  No.  4939-N  (S.D.  Miss.,  Order  of  Dec.  26, 
1972) . 

In  addition,  the  Department  of  Justice  has  lodged  section  5  objections  to  the 
county  redistricting  plans  in  Copiah,  Marion,  and  Tate  Counties,  Mississippi.  Letter 
from  Tolmach  to  Parker,  supra  note  36.  The  Copiah  County  redistricting  plan  was  ob- 
jected to  on  the  ground  that: 

The  available  demographic  information  suggests  that  the  boundary  between 
proposed  district  4  and  proposed  district  5  follows  no  natural  or  logical  geo- 
graphic pattern  and  will  result  in  diminishing  the  percentage  of  Negro  pop- 
ulation in  district  4  [majority  black]  while  increasing  it  in  district  5  [majority 


1973]  COUNTY  REDISTRICTING  407 

The  stated  justification  for  the  shape  of  the  new  districts  in  each 
of  these  cases  was  equalization  of  population  among  the  districts,79  but 
in  several  instances  (because  of  defects  in  the  house  count  technique 
used  to  arrive  at  population  figures)  1970  census  data  showed  that  this 
equalization  goal  was  not  achieved.  Also  in  each  case,  the  private  plan- 
ning firm  which  devised  the  plan  attempted  to  equalize  not  only  popu- 
lation, but  also  miles  of  rural,  county-maintained  roads,  area,  and  in 
some  cases,  assessed  property  valuation  among  the  five  districts.80  Most 
counties  in  Mississippi  operate  on  a  district  or  "beat,"  system  of  county 
road  and  bridge  administration,  in  which  each  supervisor  is  given  a 
one-fifth  share  of  county  funds  and  is  responsible  for  maintaining  the 
roads,  bridges,  and  culverts  within  his  own  district.  The  hypothesis  is 
that  equalizing  county-maintained  road  mileage  and  area  among  the 
districts  will  result  in  equalizing  road  and  bridge  maintenance  expenses, 
although  this  hypothesis  has  never  been  validated,  and  the  result  is  to 
strengthen  the  beat  system,  which  most  Mississippi  authorities  consider 
to  be  an  outmoded,  inefficient,  and  wasteful  form  of  county  administra- 
tion.81 While  the  Department  of  Justice  concluded  in  each  case  that 
there  was  no  evidence  of  a  racially  discriminatory  "purpose,"  it  is  clear 
that  where  blacks  were  concentrated  in  an  urban  area  all  attempts  to 
equalize  rural,  county-maintained  road  mileage,  area,  and  sometimes 
assessed  valuation,  inevitably  resulted  in  the  dispersement  of  black  popu- 

white].  Our  study  has  also  presuaded  me  that  there  are  alternative  means 
of  redistricting  which  would  not  have  this  effect. 

Letter  from  Jerris  Leonard,  Asst.  Attorney  General,  Civil  Rights  Div.,  U.S.  Dep't  of 
Justice,  to  Julius  L.  Lotterhos,  Jr.,  Attorney  for  the  Copiah  County  Board  of 
Supervisors,  March  5,  1970.  The  Marion  County  objection  was  lodged  "because  of 
conflicts  between  population  figures  reported  by  the  Bureau  of  the  Census  and  those 
compiled  by  the  county"  which  prevented  the  Department  of  Justice  from  de- 
termining the  racial  effects  of  the  new  districts.  Letter  from  David  L.  Norman, 
Asst.  Attorney  General,  Civil  Rights  Div.,  U.S.  Dep't  of  Justice,  to  Ernest  R.  Duff, 
Attorney  for  the  Marion  County  Board  of  Supervisors,  May  25,  1971.  The  Tate 
County  redistricting  was  objected  to  because  of  unconstitutional  population  disparities 
between  the  districts,  allowing  a  white  majority  district  to  be  overrepresented  and 
a  black  majority  district  to  be  underrepresented.  Letter  from  Norman  to  Leon  F. 
Hannaford,  County  Attorney  for  Tate  County,  Dec.  3,  1971. 

79Yazoo  County  redistricting  plan,  supra  note  69;  Warren  County  redistricting 
plan,  supra  note  71;  Leake  County  redistricting  plan,  supra  note  74;  Hinds  County 
redistricting  plan,  supra  note  77. 

sold. 

siMiss.  Gen.  Legis.  Investigating  Comm.,  1972  Report,  vol.  II,  at  32;  J.  Corkran, 
A  Comprehensive  Analysis  of  Mississippi  County  Governmental  Expenditures  and 
Management  of  Road  and  Bridge  Construction  and  Maintenance  Operations,  1964- 
1969  (Mississippi  State  University,  1971) ;  Mississippi  Economic  Councdl,  County 
Unit  Road  Administration  for  Mississippi  (1956) . 


408  MISSISSIPPI  LAW  JOURNAL  [vol.44 

lation  concentrations  among  several  districts.82  But,  equalizing  these 
factors  does  not  necessarily  disperse  black  voting  strength  in  exclusively 
rural  counties  where  blacks  are  evenly  distributed  throughout  the  county. 

IV.     Can  the  Courts  Remain  Colorblind? 

While  to  the  impartial  observer  the  racial  gerrymanders  illustrated 
in  these  section  5  objections  may  seem  obvious  and  invidiously  dis- 
criminatory in  violation  of  federal  voting  rights  guarantees,  the  federal 
courts,  except  in  a  few  instances  outside  of  Mississippi,83  have  failed 
strictly  to  apply  traditional  and  anti-gerrymandering  standards  and 
have  permitted  cracked  and  stacked  districts  in  the  context  of  meeting 
Reynolds  and  Avery  requirements.84  To  be  sure,  in  Gomillion  v.  Light- 
foot,85  the  Court  disallowed  gerrymandering  of  boundary  lines  "cloaked 
in  the  garb  of  the  realignment  of  political  subdivisions."86  Gomillion, 
however  was  a  pre-Reynolds  case  and  the  justification  of  obtaining  equi- 
populous  districts  was  not  advanced   (nor  available)  ,87 

Until  the  Supreme  Court  directly  addresses  this  question,  the  courts 
may  continue  to  tolerate  cracking  and  stacking  carried  out  under  the 
guise  of  reapportionment,  thus  diluting  black  voting  majorities.    In  an 

82ln  Avery  v.  Midland  County,  390  U.S.  474  (1968) ,  the  Court  vacated  a  Texas 
court  decision  holding  that  concern  for  distribution  of  county-maintained  roads, 
bridges,  and  property  tax  valuations  justified  disparities  of  population  among  county 
election  districts,  noting  that  Reynolds  held  that  "bases  other  than  population  were 
not  acceptable  grounds  for  distinguishing  among  citizens  when  determining  the  size 
of  districts.  .  .  ."  Id.  at  484.  The  Avery  decision  might  provide  analogous  support  for 
a  holding  that  concern  for  equalizing  county  roads,  bridges,  and  property  tax  valu- 
ation may  not  justify  diluting  black  voting  strength. 

83See  cases  cited  notes  64  and  67  supra. 

^See  Tyler,  supra  note  63,  at  400. 

85364  U.S.  339  (1960) . 

86/d.  at  345. 

87The  Supreme  Court  has  not  directly  addressed  racial  gerrymandering  of  election 
district  boundaries,  except  in  Gomillion  and  Wright  v.  Rockefeller,  376  U.S.  52  (1964) . 
However,  in  Burns  v.  Richardson,  384  U.S.  73,  88  (1966)  and  Fortson  v.  Dorsey,  379 
U.S.  433,  439  (1965) ,  the  Court  in  dicta  indicated  that  multi-member  districts  would 
be  unconstitutional  if  it  could  be  shown  that  "designedly  or  otherwise,  a  multi-member 
constituency  apportionment  scheme,  under  the  circumstances  of  a  particular  case, 
would  operate  to  minimize  or  cancel  out  the  voting  strength  of  racial  or  political 
elements  of  the  voting  population."  But  see  Whitcomb  v.  Chavis,  403  U.S.  124  (1971) , 
rev'g  Chavis  v.  Whitcomb,  305  F.  Supp.  1364  (S.D.  Ind.  1969) ,  which  held  multi- 
member districts  unconstitutional  for  diluting  ghetto  voting  strength,  where  it  was 
conceded  that  the  state's  preference  for  multi-member  legislative  districts  was  not 
racially  motivated  and  the  proof  showed  that  the  defeat  of  black  candidates  was  a 
mere  function  of  defeat  of  Democratic  party  candidates  at  the  polls. 


1973]  COUNTY  REDISTRICTING  409 

early  Mississippi  congressional  redistricting  case,  Connor  v.  Johnson,™ 
a  three-judge  district  court  sustained  a  plan  enacted  by  the  Mississippi 
Legislature  which  divided  the  state's  Second  Congressional  District— con- 
taining 17  majority  black  counties— among  three  new  districts,  thereby 
precluding  the  election  of  a  black  representative  from  the  state  with  the 
nation's  highest  percentage  of  blacks.89  The  district  court  appeared  to 
negate  any  intensive  examination  of  the  racial  effect  of  the  plan  when 
it  held  that  "one  factor,  and  only  one,  may  be  taken  into  account  in 
apportioning  and  establishing  Congressional  districts  among  the  people 
of  a  state  and  that  factor  is  population."90  The  decision  was  affirmed, 
per  curiam,  without  oral  argument,  by  the  Supreme  Court.91 

In  a  recent  county  redistricting  case  from  Mississippi,  Howard  v. 
Adams  County  Board  of  Supervisors,92  the  Fifth  Circuit  gave  short  shrift 
to  plaintiffs'  claims  that  a  realignment  of  supervisors'  districts,  ostensibly 
undertaken  to  cure  malapportionment  but  resulting  in  a  span  of  22.15 
percentage  points  of  variance  under  the  1970  census  data,  and  which 
cracked  Adams  County's  black  majority  district  four  among  four  of  the 
five  new  districts,  was  invidiously  discriminatory.  Prior  to  redistricting, 
district  four  (77.6  percent  black)  had  been  sufficiently  populous  to  be 
subdivided  into  two  compact,  black  majority  districts;93  but  the  board 

88279  F.  Supp.  619  (S.D.  Miss.  1966)  (three-judge  court) ,  aff'd  per  curiam,  386 
U.S.  483    (1967) . 

s^See  Political  Participation,  supra  note  9,  at  30-35. 

90279  F.  Supp.  at  623. 

9i386  U.S.  483  (1967)  (only  Justice  Douglas  would  have  noted  probable  jurisdic- 
tion and  calendared  the  case  for  plenary  consideration). 

92453  F.2d  455   (5th  Cir.  1972) ,  cert,  denied,  407  U.S.  925   (1972) . 

sspiaintiffs  contended  that  the  five  pre-existing  districts  could  have  been  combined 
and  sub-divided  to  arrive  at  five  equi -populous  districts  following  pre-existing  district 
boundary  lines: 


Old 

Population 

Population 

Pop.  Under 

Percent 

Percent 

District 

1970  Census 

New  Dist. 

or  Over  Norm 

Variance 

Black 

4 

15,074 

7,537  (two 
new  districts) 

+  78 

+  1.05 

75.3 

1 

13,590 

7,537  (two 

-127 

-1.70 

31.8 

2 

1,073 

new  districts) 

14,663 

3 

1,492 

7,556  (one 

+  97 

+  1.30 

24.4 

5 

6,064 

new  district) 

7,556 

Brief  for  Appellants  at  43,  Howard  v.  Adams  County  Bd.  of  Supervisors,  453   F.2d 
455    (5th  Cir.  1972) . 


410  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

of  supervisors'  plan,  to  equalize  county-maintained  road  mileage  and 
area,  had  fragmented  the  district  and,  by  combining  rural  (predomi- 
nantly white)  and  urban  (predominantly  black)  territory  in  each  new 
district,  had  deprived  the  county's  black  voters  of  a  second  black  major- 
ity district,94  although  it  retained  one  black  majority  (66.8  percent 
black)  under  the  new  district  four  scheme  (see  Appendix  E)  .  Plaintiffs' 
claim  that  this  dispersal  of  black  voting  strength  was  unnecessary  and 
unconstitutional  was  rejected  with  the  conclusion  that  the  record  was 
"bare"  of  any  evidence  of  racial  motivation,95  and  with  the  com- 
ment that  "[i]nevitably,  people  of  different  races,  national  origins, 
and  contrasting  tenets  will  be  shifted  under  reapportionment  plans  to 
districts  in  which  they  may  no  longer  be  in  the  clear  majority."96 

The  decision  in  Howard  represents  a  step  backward  and  seriously 
undermines  federal  constitutional  and  statutory  voting  rights  guarantees. 
To  the  extent  that  it  fails  to  apply  principles  established  in  cases  involv- 
ing similar  claims,  discussed  herein,  the  decision  should  not  be  followed 
in  future  cases.  First,  the  court  failed  to  recognize  the  principle,  implicit 
in  the  at-large  voting  cases,  that  states  and  political  subdivisions  with  a 
prior  history  of  racial  discrimination  in  voting  are  under  an  affirmative 
obligation  in  adopting  new  election  procedures  to  insure  that  those  new 
procedures  do  not  have  the  effect  of  diluting  or  minimizing  black  voting 
strength.  The  standard  is  not  unlike  that  recently  applied  by  the  Su- 
preme Court  in  school  desegregation  cases,  whereby  the  reorganization 
of  school  districts  "must  be  judged  according  to  whether  it  hinders  or 

9*The  second  highest  black  district  was  District  Three,  51  percent  white,  49  per- 
cent black.  453  F.2d  at  457. 

ss/d.  at  458.  However,  the  court  noted  that  proof  of  racial  motivation  was  no 
longer  necessary  to  establish  unconstitutional  discrimination  in  redistricting,  if  the 
effect  was  racially  discriminatory.  Id.  at  457-58. 

96/d.  at  459.  The  court  rejected  what  it  characterized  as: 

plaintiffs  notion  that  they  are  constitutionally  entitled  to  have  old  District 

Four  divided  into  two  predominantly  black  electoral  districts  simply  because 

they  command  a  population  concentration  of  sufficient  size  and  contiguity 

to  constitute  two  equally  apportioned  districts. 

Id.  at  458,  citing,  Whitcomb  v.  Chavis,  403  U.S.  124,  144   (1971) .  The  record  does  not 

reveal    that    plaintiffs    expressly    asked    for    benign    districting,    and    this    conclusion 

could  well  be  applied  in  all  racial  gerrymandering  cases  to  turn  black  voters'  claims 

for   racial   equality    into    arguments    for   a   racial   preference,    which   could    then    be 

rejected  on  that  ground. 

The  district  court  in  Howard  had  already  rejected  the  challenged  redistricting 
plan  for  failure  to  meet  standards  of  population  equality,  and  on  remand  from  the 
Fifth  Circuit  the  defendants  merely  adjusted  the  lines  in  Natchez  to  provide  more 
equal  districts.  The  case  is  now  back  in  the  Fifth  Circuit  on  plaintiffs'  contention  that 
the  revised  plan  constitutes  an  even  greater  racial  gerrymander.  Howard  v.  Adams 
County  Bd.  of  Supervisors,  No.  72-2596  (5th  Cir.,  filed  June  20,  1972) . 


1973]  COUNTY  REDISTRICTING  411 

furthers  the  process  of  school  desegregation."97  Redistricting,  therefore, 
must  be  judged  according  to  whether  it  hinders  or  furthers  the  oppor- 
tunities of  newly-enfranchised  black  voters  to  elect  representatives  of 
their  choice. 

The  practical  effect  of  this  standard's  application  is  to  require  re- 
districting  authorities  to  pursue  the  least  discriminatory  alternative  in 
redistricting.  If,  in  Howard,  it  was  possible  to  redistrict  the  county  to 
provide  two  districts  in  which  newly-enfranchised  black  voters  could 
elect  representatives  of  their  choice  and  still  meet  one-man,  one-vote  re- 
quirements, as  the  plaintiffs  contended,  then  the  court  should  have 
required  the  defendants  to  pursue  that  alternative,  rather  than  allowing 
a  plan  which  cancels  out  a  second  black  majority  district.  In  short,  it  is 
not  true  that  "[i]nevitably,  people  of  different  races,  national  origins, 
and  contrasting  tenets  will  be  shifted  ...  to  districts  in  which  they  may 
no  longer  be  in  the  clear  majority."98  In  most  cases  there  are  a  number 
of  redistricting  alternatives  which  would  equally  satisfy  equal  population 
standards,  some  more  discriminatory  than  others.  Under  these  circum- 
stances the  courts  should  require  the  adoption  of  the  least  discriminatory 
alternative.99 

Second,  the  court  erred  in  permitting  the  defendants  to  justify  their 
dispersal  of  old  district  four  black  voting  strength  on  the  basis  of  what 
it  termed  the  "legitimate  planning  objectives"100  of  equalizing  county- 
maintained  road  mileage  and  land  area  for  purposes  of  county  district 
administration.  The  Justice  Department  objections  under  section  5  of 
the  Voting  Rights  Act  of  1965  have  shown  that  when  there  is  a  heavy 
concentration  of  black  population  in  the  urban  center  of  a  county,  equal- 
izing county-maintained  road  mileage  and  land  area  (which  requires  the 
rural  portions  of  the  county  to  be  equally  divided  among  the  new  dis- 
tricts) dictates  that  the  urban  center  be  fragmented  among  the  districts 
to  achieve  population  equality,  with  the  inevitable  effect  of  cracking 
black  population  concentrations  and  dispersing  them  among  several  dis- 
tricts.101 If  the  use  of  these  planning  criteria  did  result  in  a  dispersal  of 
black  voting  strength  in  Adams  County,  as  the  court  seemed  to  recog- 

97Wright  v.  Council  of  City  of  Emporia,  407  U.S.  451,  460  (1972)  . 

esHoward  v.  Adams  County  Bd.  of  Supervisors,  453  F.2d  455,  459   (5th  Cir.  1972) . 

99See,  e.g.,  Sims  v.  Amos,  336  F.  Supp.  924  (M.D.  Ala.  1972) ;  Bussie  v.  Governor 
of  Louisiana,  333  F.  Supp.  452  (E.D.  La.  1971)  (master's  plan  accepted,  defendants' 
plan  rejected) ;  Troxler  v.  St.  John  the  Baptist  Parish  Police  Jury,  331  F.  Supp.  222 
(E.D.  La.  1971)  (defendants'  plan  rejected,  plaintiffs'  plan  accepted)  . 

100453  F.2d  at  456. 

loiSee  text  at  notes  79-82  supra. 


412  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

nize,  then  the  court  permitted  federal  constitutional  and  statutory  voting 
rights  guarantees  to  be  subverted  by  an  administrative  planning  decision 
of  the  board  of  supervisors,  which  apparently  was  without  precedent  in 
Adams  County102  and  certainly  without  specific  statutory  authority.103 

The  Howard  decision  thus  seems  to  permit  unconstitutional  racial 
gerrymandering  and  dispersal  of  black  voting  strength  when  cloaked  in 
the  garb  of  equalizing  county-maintained  road  mileage  and  land  area. 
All  other  things  being  equal  in  racially  neutral  circumstances,  permitting 
non-population  related  criteria  to  influence  line-drawing  decisions  should 
not  violate  constitutional  guarantees;  but,  applying  administrative  cri- 
teria unrelated  to  the  constitutional  requirement  of  equalizing  popula- 
tion among  the  districts  does  become  constitutionally  intolerable  when 
it  has  the  effect  of  fragmenting  and  carving  up  black  population  concen- 
trations and  produces  distorted  districts.104 

The  decisions  in  these  cases  are  not  untypical  and  seem  to  be  part 
of  a  general  pattern  of  unresponsiveness  by  the  courts  to  claims  of  racial 
gerrymandering.105    In  each  case  all  the  objective  criteria  for  detecting 

i02Prior  to  the  1970  redistricting,  the  pre-existing  supervisors'  districts  contained 
great  disparities  of  county-maintained  road  mileage  and  land  area.  Adams  County 
Redistricting  Plan,  p.  6,  on  file  in  Howard  v.  Adams  County  Bd.  of  Supervisors,  453 
F.2d  455    (5th  Cir.  1972) . 

io3The  Mississippi  statute  providing  for  county  redistricting,  Miss.  Code  Ann.  § 
2870  (1956) ,  provides  no  specific  authorization  for  equalizing  county-maintained 
road  mileage  or  land  area  in  county  redistricting.  See  relevant  text  accompanying 
note  16  supra. 

lo^Deference  to  the  concerns  of  local  government  administration  in  the  reapportion- 
ment cases  has  justified  departures  from  strict  equality  of  population  among  the 
districts,  e.g.,  Mahan  v.  Howell,  93  S.  Ct.  979  (1973)  (allowing  a  span  of  16.4  percent 
to  preserve  the  integrity  of  political  subdivision  lines)  ;  Abate  v.  Mundt,  403  U.S. 
182  (1971)  (approving  span  of  11.9  percent)  ,  largely  because  the  language  of  the 
14th  amendment  is  not  specific  on  this  point,  and  therefore  substantial  leeway  in 
the  enforcement  of  the  one-man,  one-vote  requirement  seems  tolerable:  "Mathe- 
matical exactness  or  precision  is  hardly  a  workable  constitutional  requirement." 
Reynolds  v.  Sims,  377  U.S.  533,  577  (1964)  .  But  the  flexibility  allowed  in  the 
reapportionment  cases  should  not  permit  a  similar  flexibility  in  the  enforcement 
of  15th  amendment  guarantees.  The  requirements  of  the  15th  amendment  are 
specific,  unequivocal,  and  inflexible:  "The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States  or  by  any  State  on 
account  of  race,  color,  or  previous  condition  of  servitude."  See,  eg.,  Gomillion  v. 
Lightfoot,  364  U.S.  339  (1960) . 

i05in  the  Virginia  legislative  reapportionment  case,  Mann  v.  Davis,  245  F.  Supp. 
241  (E.D.  Va.  1965)  (three-judge  court) ,  affd  sub  nom.  Burnette  v.  Davis,  382  U.S. 
42  (1965) ,  the  Court  summarily  affirmed  a  district  court  decision  holding  that 
stacking  black  concentrations  with  greater  white  concentrations  in  combining  the  City 
of  Richmond  and  adjoining  Henrico  County  in  a  multi-member  district  for  election 


1973]  COUNTY  REDISTRICTING  413 

racial  gerrymanders  had  been  met:  (1)  the  new  boundary  lines  aban- 
doned pre-existing  district  boundaries;  (2)  the  shapes  of  the  new  dis- 
tricts contained  narrow  corridors,  were  overly  elongated,  and  uncompact; 
(3)  black  voting  strength  was  fragmented  and  diluted;  and  (4)  there 
was  no  evidence  that  there  were  no  alternative  plans  which  could  have 
satisfied  one-man,  one-vote  standards  without  dispersing  concentrations 
of  black  voting  strength.106  In  Mississippi,  with  its  extensive  past  history 
of  racial  exclusion  of  blacks  from  equal  opportunities  for  political  par- 
ticipation, new  districts  with  such  characteristics  should  be  presumptively 
unconstitutional,  even  in  the  absence  of  direct  evidence  of  racial  motiva- 
tion. Further,  it  appears  that  the  courts  in  these  cases  failed  to  apply 
even  the  most  elemental  anti-dilution  standards  enunciated  by  the  De- 
partment of  Justice  in  the  section  5  objections,  although  in  the  Howard 
case  the  new  plan  had  been  submitted  and  no  objection  was  lodged.107 

of  members  of  the  state  legislature  was  not  unconstiutional  given  the  state's  history 
of  multi-member  districts. 

More  recently,  the  Court  summarily  affirmed  per  curiam  a  district  court  decision 
in  the  Oklahoma  legislative  reapportionment  case  which  rejected  claims  that  the 
legislature's  plan  for  state  senate  districts  cracked  black  population  concentrations 
in  Tulsa  County  on  the  ground  that  the  plan  achieved  almost  perfect  equality  of 
population  whereas  the  plaintiffs'  proposed  alternative  did  not.  Ferrell  v.  Oklahoma 
ex  rel.  Hall,  339  F.  Supp.  73  (W.D.  Okla.  1972)  (three-judge  court) ,  aff'd  per  curiam, 
406  U.S.  939    (1972) . 

In  Graves  v.  Barnes,  343  F.  Supp.  704  (W.D.  Tex.  1972)  (three-judge  court) , 
the  court  voided  multi-member  legislative  districts  in  Bexar  and  Dallas  Counties, 
but  rejected  (2-1)  claims  that  the  senatorial  districts  in  Harris  County  (Houston) , 
Which  cracked  the  center  city  and  combined  urban  black  concentrations  with  outlying 
white  concentrations  in  four  white  majority  districts  (id.  at  744-49)  (dissenting 
opinion) ,  were  gerrymandered,  holding  that  the  Constitution  required  proof  that  "the 
effects  are  indeed  substantial,  if  not  egregious",  id.  at  735,  without  further  defini- 
tion of  those  terms. 

io6in  numerous  cases,  the  presence  of  these  factors  have  been  held  probative  of 
racial  gerrymandering.  See  Edwards,  The  Gerrymander  and  "One  Man,  One  Vote," 
46  N.Y.U.L.  Rev.  879   (1971). 

i07in  response  to  an  inquiry  from  Senators  Philip  A.  Hart,  Edward  M.  Kennedy, 
Birch  Bayh,  and  John  V.  Tuney  as  to  why  the  Department  of  Justice  did  not  object 
to  the  Adams  County  redistricting,  David  L.  Norman,  then  Acting  Assistant  Attorney 
General  in  charge  of  the  Civil  Rights  Division  responded  that  available  information 
indicated  that  "its  purpose  was  to  remedy  existing  disproportionate  representation 
among  the  several  beats  in  the  County  in  conformity  with  the  one-person,  one-vote 
requirement  of  the  Fourteenth  Amendment"  and  that  "[u]nder  the  redistricting  plan, 
a  substantial  black  majority  of  over  68%  was  maintained  in  Beat  4."  Enforcement 
Hearings,  supra  note  78,  at  316.  The  Justice  Department's  failure  to  object  appears 
inconsistent  with  the  section  5  objections  to  redistricting  plans  in  Yazoo  and  Warren 
Counties,  where  although  the  redistricting  was  purportedly  undertaken  to  cure 
malapportionment  and  resulted  in  retaining  some  black  majority  districts,  there  was, 
nevertheless,  a  fragmentation  of  urban  black  population  concentrations. 


414  MISSISSIPPI  LAW  JOURNAL  [vol.44 

If  this  trend  continues,  and  the  courts  continue  to  fail  to  apply  the 
appropriate  anti-gerrymandering  standards  enunciated  in  the  Attorney 
General's  section  5  objections,  serious  conflicts  will  be  created  between 
the  administrative  and  judicial  enforcement  of  voting  rights  guarantees 
against  racial  discrimination,  and  political  subdivisions  will  be  in- 
creasingly encouraged  to  avoid  section  5  submission  of  new  boundary 
changes  in  redisricting  suits108  by  going  to  courts  where  they  can 
expect  the  anti-gerrymandering  standards  to  be  less  demanding. 

The  adverse  precedental  effect  of  these  cases  may  be  offset  by  the 
Supreme  Court's  recent  decision  in  Taylor  v.  McKeithen,109  a  Louisiana 
legislative  reapportionment  case.  There  a  special  court-appointed  master 
devised  a  legislative  reapportionment  plan  in  the  City  of  New  Orleans, 
giving  blacks  two  registered  majority  senatorial  districts  by  splitting  tra- 
ditional ward  and  precinct  lines.  The  incumbent  state  senators,  who 
under  the  master's  plan  were  pitted  against  each  other,  proposed  an 
alternative  plan  which  followed  ward  lines  but  precluded  black  regis- 
tered majorities  in  any  district  (although  one  district  had  a  black  popu- 
lation majority) .  The  district  court,  in  rejecting  the  senators'  plan  on 
the  grounds  that  it  appeared  to  be  designed  to  protect  the  incumbents 
in  office  and  also  because  it  cracked  black  majorities,  stated,  "while  the 
Senators'  plan  probably  would  meet  the  one  man,  one  vote  standard  .  .  . 
it  would  ...  operate  to  diversify  the  Negro  voting  population  through- 
out the  four  districts  and  thus  significantly  dilute  their  vote."110  The 
court  of  appeals,  without  opinion,  simply  substituted  the  incumbent 
senators'  proposed  districts  for  the  district  court's  approved  districts. 
The  Supreme  Court  in  a  brief  per  curiam  opinion,  noting  the  district 
court's  conclusion  that  the  senators'  cracked  districts  were  racially  dis- 
criminatory, vacated  the  judgment  of  the  court  of  appeals  and  remanded 
for  further  proceedings  "[b]ecause  this  record  does  not  fully  inform  us 
of  the  precise  nature  of  the  litigation  and  because  we  have  not  had  the 
benefit  of  the  insight  of  the  Court  of  Appeals."111  Implicit  in  this  deci- 
sion is  the  recognition  by  the  Supreme  Court,  for  the  first  time,  of  the 
racially  discriminatory  effect  of  cracked  districts  in  the  context  of  re- 

losThe  Supreme  Court  itself  opened  the  door  to  circumvention  of  the  section 
5  submission  requirements  in  the  latest  stage  of  the  Mississippi  legislative  reapportion- 
ment case,  when  it  said,  in  ruling  on  a  motion  for  stay  pending  appeal,  "[a]  decree 
of  the  United  States  District  Court  is  not  within  reach  of  Section  5  of  the  Voting 
Rights  Act "  Conner  v.  Johnson,  402  U.S.  690,  691  (1971) . 

109407  U.S.  191  (1972),  vacating  and  remanding  Bussie  v.  McKeithen,  457  F.2d 
796  (5th  Cir.  1971) ,  modifying  and  aff'g  Bussie  v.  Governor  of  Louisiana,  333  F. 
Supp.  452    (E.D.  La.  1971) . 

H0333  F.  Supp.  at  457. 

1H407  U.S.  at  191. 


1973]  COUNTY  RED1STRICTING  415 

apportionment  litigation,  although  precise  definition  of  the  circum- 
stances in  which  cracked  districts  are  unconstitutional  must  await  fur- 
ther litigation. 

The  congressional  redistricting  decision  in  Connor  and  the  county 
redistricting  decision  in  Howard  also  should  be  compared  with  the  re- 
cent decision  in  Moore  v.  Leflore  County  Board  of  Election  Commis- 
sioners.112 In  Moore,  after  the  district  court  struck  down  the  at-large 
election  of  supervisors,113  the  defendants  submitted  to  the  court  an  alter- 
native redistricting  plan.  Prior  to  redistricting,  blacks  constituted  a 
population  majority  ranging  from  69  percent  to  78  percent  in  four  of 
the  five  supervisors'  districts,  in  a  county  which  is  58  percent  black.114 
The  proposed  plan  equalized  population  among  the  five  districts  but 
substantially  reduced  the  black  population  preponderance  in  each  dis- 
trict, and  dispersed  the  black  population  concentration  in  southeast 
Greenwood  (containing  44.2  percent  of  the  county's  black  population) 
among  four  of  the  five  new  districts.115  The  district  court  held  the  plan 
constitutionally  unacceptable,  finding  that  "both  the  purpose  and  effect 
of  the  board's  plan  was  to  divide  the  black  population  and  dilute  the 
black  vote  in  Leflore  County."116 

The  proposed  redistricting  in  Moore  was  clearly  unconstitutional 
because  the  board  admitted  utilizing  an  express  racial  criterion  —  "Mr. 
Kellum  [president  of  the  board]  frankly  testified  on  the  witness  stand 
that  his  intent  was  to  bring  into  each  of  the  new  districts  the  same  racial 
ratio,  i.e.,  58%  black  to  42%  white,  as  existed  for  the  county  as  a 
whole.  .  .  ."117  The  question  which  must  be  answered  in  future  cases  is 
whether  a  redistricting  plan  which  achieves  the  same  effect,  i.e.,  dis- 
persal and  fragmentation  of  black  voting  strength,  is  unconstitutional  if 
the  defendants  do  not  admit  using  racial  criteria,  but  rather  justify  the 
location  of  the  new  boundary  lines  on  the  use  of  facially  non-racial 
criteria  unrelated  to  achieving  population  equality,  such  as  equalizing 
county-maintained  road  mileage,  or  area,  or  assessed  property  valuation 

ii2Civil  No.  GC  71-84-K  (N.D.  Miss.  Dec.  20,  1972) . 

nsMoore  v.  Leflore  County  Bd.  of  Election  Comm'rs,  351  F.  Supp.  848  (N.D. 
Miss.  1971) . 

ii4Civil  No.  GC  71-84-K,  at  6  (N.D.  Miss.  Dec.  20,  1972) . 

iis/d.  at  2-3. 

iie/d.  at  10.  Unfortunately,  the  court  also  endorsed  equalizing  county-maintained 
road  mileage  and  area,  although  the  president  of  the  board  of  supervisors  testified 
that  this  was  not  necessary  to  county  government.  Hearing  transcript  at  209  (Oct. 
18,  1972) .  Thus,  the  court  inadvertantly  may  have  permitted  the  board  to  ac- 
complish by  indirect  means  what  it  prohibited  the  board  from  accomplishing  by 
the  express  use  of  racial  criteria.  See  note  82  supra. 

117/d.  at  3. 


416  MISSISSIPPI  LAW  JOURNAL  [vol.44 

in  each  of  the  new  districts.  Supreme  Court  dicta  in  prior  cases118  and 
the  recent  Taylor  decision  suggest  that  a  strong  racially  discriminatory 
effect  alone  is  sufficient  to  vitiate  such  a  redistricting  plan.119 

To  date  the  Supreme  Court  and  the  courts  of  appeals  have  failed  to 
articulate  adequately  the  sorely  needed  strict  standards  by  which  cases 
of  racial  gerrymandering  are  to  be  judged.  The  cases  involving  at-large 
elections  provide  a  guide  for  whether  the  result  reached  by  the  Supreme 
Court  in  Whitcomb  was  correct.  At  least  it  should  be  clear  that  in  South- 
ern States,  with  a  prior  history  of  racial  discrimination  in  voting,  public 
officials  are  under  an  affirmative  obligation  to  draw  district  lines  which 
do  not  minimize  or  cancel  out  new  black  voting  strength.  The  Depart- 
ment of  Justice's  section  5  objections  to  Mississippi  redistricting  plans, 
while  inadequate  in  some  instances,  nevertheless  provide  a  starting  point 
for  the  development  of  such  standards.  Where  new  district  lines  violate 
the  traditional  anti-gerrymandering  standards  of  compactness,  contiguity, 
and  adherence  to  pre-existing  political  subdivision  boundaries,  or  where 
the  new  lines  have  the  effect  of  cracking  or  stacking  concentrations  of 
black  voting  strength,  there  is  a  strong  case  for  attaching  a  presumption 
of  unconstitutionality  to  such  plans  and  for  placing  the  heavy  burden  of 
justifying  the  new  district  lines  on  state  or  county  authorities.  Indeed,  it 
is  arguable  that  such  was  the  intent  of  Congress  in  requiring  a  prior 
declaration  of  constitutionality  of  new  election  procedures  in  enacting 
section  5  of  the  Voting  Rights  Act  of  1965.  The  Department  of  Justice, 
in  its  new  section  5  enforcement  regulations,  also  places  the  burden  on 
state  authorities  to  prove  that  new  election  procedures  are  not  racially 
discriminatory.120  Where  the  new  district  lines  dilute  black  voting 
strength,  as  in  cases  of  cracked  or  stacked  districts,  the  redistricting  au- 
thority should  be  required  to  show,  as  in  other  cases  of  franchise  abridg- 
ment, that  the  new  boundary  lines  are  necessary  to  effectuate  a  compell- 
ing state  interest,  and  that  no  less  discriminatory  alternatives  are  avail- 
able.121 


nsBurns  v.  Richardson,  384  U.S.  73  (1966) ;  Fortson  v.  Dorsey,  379  U.S.  433  (1965)  . 

ii9ln  Sellers  v.  Trussell,  253  F.  Supp.  915  (M.D.  Ala.  1966),  a  three-judge 
district  court  held  that  although  there  were  "legitimate  purposes"  for  a  special  legis- 
lative act  extending  the  terms  of  office  for  incumbent  county  commissioners,  and 
no  evidence  of  racially  discriminatory  motives,  nevertheless  the  act  was  unconstitutional 
because  of  its  "readily  apparent  discriminatory  effect.  .  .  ."  Id.  at  917. 

12028  C.F.R.  51.19  (1971) ,  procedures  for  the  administration  of  section  5  of  the 
Voting  Rights  Act  of  1965. 

iziln  Kramer  v.  Union  Free  School  Dist.,  395  U.S.  621  (1969) ,  the  Court,  in 
striking  down  property  tax  and  parenthood  restrictions  on  the  right  to  vote  in 
school  district  elections,  required  the  state  to  shoulder  the  burden  of  showing  that 


1973]  COUNTY  REDISTRICTING  417 

The  development  of  strict  anti-dilution  standards  should  not  be 
confused  with  benign  districting,  or  with  requiring  a  racial  preference. 
In  Howard  v.  Adams  County  Board  of  Supervisors122  the  Fifth  Circuit 
rejected  plaintiffs'  alleged  claims  "that  they  are  constitutionally  entitled 
to  have  old  District  Four  divided  into  two  predominantly  black  electoral 
districts  simply  because  they  command  a  population  concentration  of 
sufficient  size  and  contiguity  to  constitute  two  equally  apportioned  dis- 
tricts."123 In  Adams  County  blacks  constituted  47.9  percent  of  the  total 
population,  and  thus  had  the  voting  strength  to  elect  at  least  two  blacks 
to  the  board  of  supervisors,  while  the  challenged  redistricting  plan  pro- 
vided only  one  black  majority  district.  If,  as  the  recent  legal  com- 
mentary124 and  the  cases125  seem  to  hold,  the  essence  of  racial  gerry- 
mandering is  racial  malrepresentation,  then  under  these  circumstances 
a  redistricting  plan  resulting  in  only  one  black  majority  district  should 
be  presumptively  unconstitutional,  and  the  redistricting  authority  should 
be  obliged  to  prove  the  unavailability  of  alternative  plans  providing 
equi-populous  districts  without  this  substantial  dilution  of  black  voting 
strength.  Otherwise,  the  conclusion  of  the  court  of  appeals  is  tantamount 
to  a  holding  that  claims  of  racial  gerrymandering,  or  dilutions  of  black 
voting  strength,  are  non-justiciable,  and  counties  in  Southern  States  will 
be  free  to  gerrymander  black  voting  strength  so  long  as  they  provide  one 
token  black  majority  district,  regardless  of  the  potential  for  greater  black 
representation. 

the  exclusions  are  necessary   to  promote  a   compelling  state   interest   .... 

[W]hen  we  are  reviewing  statutes  which  deny  some  residents  the  right  to  vote, 

the    general    presumption    of    constitutionality    afforded    state    statutes    and 

the  traditional  approval  given  state  classifications  if  the  Court  can  conceive 

of  a  "rational  basis"  for  the  distinctions  made  are  not  applicable. 

Id.  at  627-28.  In   most  cases  involving  claims  of  racial   gerrymandering,   the  courts 

have  failed  to  apply  this  "strict  scrutiny"  standard,  and  the  claims  have  been  rejected 

because  the  plaintiffs  have  failed  to  meet  their  burden  of  proof  which,  in  most  cases, 

is  not  defined.  See,  e.g.,  Howard  v.  Adams  County  Bd.  of  Supervisors,  453  F.2d  455, 

458  (5th  Cir.  1972) .  In  requiring  the  state  to  show  that  the  exclusions,  or  redistricting, 

are  necessary  to  promote  a  compelling  state  interest,  there  should  be  no  distinction 

between  cases  in  which  the  franchise  is  denied,  as  in  Kramer,  or  where  it  merely 

is  diluted,  as  in  Howard,  since  "[t]he  right  to  vote  can  be  affected  by  a  dilution  of 

voting  power  as  well  as  by  an  absolute  prohibition  in  casting  a   ballot."  Allen  v. 

State    Bd.    of    Elections,    393    U.S.    544,    569     (1969) ;    Reynolds    v.    Sims,    377    U.S. 

533,  555    (1964) . 

122453  F.2d  455   (5th  Cir.  1972) ,  cert,  denied,  407  U.S.  925    (1972) . 
i23/d.  at  458. 
mSee  note  62  supra. 

i25Bussie  v.  Governor  of  Louisiana,  333  F.  Supp.  452  (E.D.  La.  1971);  Smith  v. 
Paris,  257  F.  Supp.  901,  904  (M.D.  Ala.  1966) ;  Sims  v.  Baggett,  247  F.  Supp.  96,  109 
(M.D.  Ala.   1965)  . 


418  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

V.    Conclusion 

Although  black  citizens  in  Mississippi  under  the  Voting  Rights  Act 
of  1965  now  have  the  right  to  register  and  vote  freely,  without  discrimi- 
nation, the  newly  gained  franchise  in  many  instances  has  been  rendered 
meaningless  by  racial  gerrymandering  under  the  guise  of  county  re- 
apportionment to  meet  Reynolds  standards.  The  gerrymandering  has 
proceeded  by  two  stages:  first,  by  abandoning  supervisors'  district  boun- 
daries entirely  and  electing  members  of  the  county  board  of  supervisors 
on  an  at-large,  countywide  basis,  in  some  instances  diluting  the  voting 
strength  of  blacks  who  held  district,  but  not  countywide,  voting  majori- 
ties; and  second,  by  carefully  redrawing  district  boundaries  using  addi- 
tional criteria  unrelated  to  population  equality,  such  as  equalizing 
county-maintained  road  mileage,  area,  and  assessed  valuation  among 
the  districts,  which  results  in  districts  with  distorted  boundary  lines  by 
cracking  concentrations  of  black  voting  strength,  or  by  stacking  greater 
white  population  majorities  onto  lesser  black  population  concentrations 
to  disperse  and  dilute  black  voting  strength.  In  significant  instances, 
such  racial  gerrymandering  of  boundary  lines  has  been  blocked  by  ob- 
jections of  the  Department  of  Justice  under  section  5  of  the  Voting 
Rights  Act  of  1965;  but  other  instances,  displaying  the  same  characteris- 
tics as  the  objected-to  plans,  have  been  approved  by  the  courts,  both 
before  and  after  the  passage  of  the  Voting  Rights  Act.  These  section  5 
objections  show  that  the  courts  generally  have  been  remiss  in  failing  to 
articulate  strict  and  well-defined  standards  for  judging  claims  of  racial 
gerrymandering.  Unless  the  Supreme  Court,  and  the  courts  of  appeals, 
become  more  sensitive  to  the  intricacies  of  racial  gerrymandering,  re- 
redistricting  in  Mississippi,  and  in  other  states  with  substantial  black 
concentrations,  may  well  become  an  instrument  for  defeating  the  Rey- 
nolds goal  of  providing  fairer  and  more  equal  democratic  representation. 


1973] 


COUNTY  REDISTRICTING 
APPENDIX  A 


419 


Yazoo  County  "cracked"  districts.  Small  map  on  left  (census  map) 
shows  supervisors'  district  boundaries  in  Yazoo  County,  Mississippi,  prior 
to  redistricting.  Under  the  redistricting  plan,  District  S  was  fragmented 
among  all  five  districts  (top  map,  districts  shaded  to  show  shape  of 
boundaries)  and  the  black  concentration  in  majority  black  Yazoo  City, 
the  county  seat  (map  on  right)  was  unnecessarily  dispersed  among  all 
five  new  districts  leading  to  an  objection  to  the  redistricting  plan  from 
the  Department  of  Justice.  Unless  otherwise  indicated,  all  maps  used 
herein  drawn  by  Henry  J.  Kirksey,  Jackson,  Mississippi. 


420 


MISSISSIPPI  LAW  JOURNAL 
APPENDIX  B 


[vol.  44 


Note:  Three  districts  wholly  wltfcis 
Vicksburg  for  more  than40yeart. 


WARREN  COUNTY     (Redistricting  challenged) 


Population:  44,981 

Black  composition:  €8.80% 

Old  districts  with  black  majority:  S 

New  districts  with  black  majority:  ? 


VICKSBURG 


Wan  ^n  Counft 


VICKSBURG    Warren  County 

Population:   25,479 

Black  composition:   49.3% 

Vicksburg*s  share  of  county  populetion:   55.  4 

Supervisor  District  equivalence:  2.83 

Old  districts  wi-eliy  within  city:   3 

New  districts  wholly  within  city:  0 

New  districts  partially  within  city:  5 


LEGEND 

Corporate  Limits . 
SD  Boundaries  — 


Black  concentration: 
25  to  49.9%    IHIIIIIIIIIII!! 
50  to  69.9%    llllllllllll 

Note:  Concentration  contains  98.8 
of  the  total  in  Vicksburg.  The  sai 
area  also  contains  78.5%  of  total 
white  population  in  the  city. 


L^\ 


Warren  County  "cracked'*  districts.  Prior  to  redistricting  three  major- 
ity black  supervisors'  districts  were  contained  entirely  within  the  county 
seat  of  Vicksburg  (top  left) ,  but  the  new  redistricting  plan  combined 
rural  and  urban  areas  in  each  new  district  within  boundary  lines  which 
were  decidedly  uncompact  (top  right,  districts  shaded  to  show  shape  of 
boundaries) ,  and  which  dispersed  among  all  five  districts  the  black 
population  concentration  within  Vicksburg  (bottom  right,  new  district 
lines  superimposed  on  census  enumeration  districts  shades  for  racial 
percentages) . 


1973] 


COUNTY  REDISTRICTING 
APPENDIX  C 


421 


LEAKE  COUNTY      (Redi striding  challenged) 

Population:    17,685 

Black  composition:   35.6% 

Old  districts  with  black  majority:    I 

Hew  districts  with  black  majority:  0 


CARTHACE  »\T 


CARTHAGE      Leake  County 
Population:   3,031 
Black  composition:   2t.9% 
Carthage  share  ot  county  population:    IT.7X 
Supervisor  District  equivalence:   .8 
Districts  wfcoliy  within  city:  0 
Districts  partially  within  city:   3 
Districts  dividine  biack  concentration:    2 
PRIOR  DISTRICT  BOUNDARIES 
(census  map) 

Leake  County  "stacked"  districts.  Prior  to  redistricting,  District  3 
(shown  on  map  at  bottom  left)  had  been  majority  black.  Under  the 
new  redistricting  plan,  the  new  District  3  boundary  was  curved  into  the 
Town  of  Carthage  (top  left,  districts  shaded  to  show  shape  of  boun- 
daries) and  hooked  around  the  black  concentration  in  Carthage  to  sub- 
merge the  rural  black  population  formerly  in  old  District  3  into  a 
greater  urban  white  concentration  in  Carthage  contained  in  a  boundary 
line  which  formed  a  perfect  number  "1"  (map  on  right,  shading  indi- 
cates majority  black  Census  enumeration  district  within  Carthage) . 


422 


MISSISSIPPI  LAW  JOURNAL 
APPENDIX  D 


[vol.  44 


HINDS  COUNTY     (Before  1969  redi striding) 

1969  Census 

Population:    187,045 
Black  composition:   40.0% 
Jackson  per  cent  of  population:  77.2 
Districts  with  black  majority:  2 

1970  Census 

Population:  214,973 

Black  composition:  39.  i 

Jackson  per  cent  of  Population:  71.1% 

Districts  with  black  majority:  2 


MAP  A 


The  table  below  shows  new  district  population  as  counted 
by  planners,  estimated  by  plaintiffs  and  recomputed  to 
new  district  lines  by  the  Census  Bureau: 


SD 


Planners 


Plaintiffs 


Census  Bureau 


1  43,236                    51,200  50,962 

2  43,324                   38,800  38,913 

3  42,921                   48,800  48,852 

4  42,777                   43,300  43,110 

5  43,192                   32,000  33,136 
Planners'  criteria  for  redistricting: 

1.  Equal  Population  2.  Equal  county  road  milage 
3.  Equal  assessed  property  value 


HINDS  COUNTY    (1969  redistricting  challenged) 

Population:   214,973 
Black  composition:  39.  1% 
Jackson  per  cent  of  population:  71.1% 
Districts  with  black  majority:  0 


MAP  B 


MAP  C 


1973] 


COUNTY  REDISTRICTING 


423 


Hindi  Ceurrty 
LEGEND 

Corporate  Limits  — .  — .  — 
New  Incorporation  — ..— 
SD  Boundaries    i  i 

Black  Concentration: 

to  100%  -  Average  90%  uiltt 


Population:  193,988 

Slack  composition:   39. 6% 

Per  cent  of  county  population  in  Jackson:  71. IX 

Supervisor  District  equivalence:   3.58 

Districts  wholly  within  Jackson:   0 

Districts  partially  within  Jackson:  6 

Population  of  black  concentration:   53,173 
Supervisor  District  eijulvalenee:    1.39 
Supervisor  Districts  dividing  concentration:  3 
Concentration  as  a  per  cent  of  total  — 
-black  population  of  Jacksen:  97.8% 
.Mack  population  oi  Hinds  County:  71,1% 


MAP  D 


Hinds  County  "stacked"  and  "cracked"  districts.  Before  redisrict- 
ing, Hinds  County  had  two  black  majority  districts  (Districts  2  and  3) 
in  the  rural  area  of  the  county,  and  only  three  districts  penetrated  the 
City  of  Jackson  (Map  A) .  The  new  redisricting  plan  eliminated  the 
rural,  majority  black  districts  and  brought  all  five  districts  into  the  City 
of  Jackson  (Map  C,  City  of  Jackson,  and  Map  B,  Hinds  County) 
to  submerge  the  rural  black  concentration  into  greater  urban  white 
concentrations  and  to  disperse  the  urban  black  concentration  (con- 
taining 60,000  black  persons)  among  all  five  districts  (Map  D,  majority 
black  enumeration  districts  shaded) . 


424 


MISSISSIPPI  LAW  JOURNAL 
APPENDIX  E 

ADAMS  COUNTY 

1979  Census 

ED  Black  Population  % 

0     to   24.9%  '/////, 

25  to  49.9%  ':•:*:':* 

50   to  74.9%    XVAV 

75  to  tec  %    iVAVA 

Old  Beat  Lines  (Red) 

Hew  Beat  Lints  ( Red)      ui 


[VOL.   44 


MAP  A 


MAP  B 


MAP  C 


MAP  D 


Adams  County  "cracked"  districts.  Before  redistricting,  only  two 
districts  penetrated  the  City  of  Natchez,  and  the  district  boundaries 
generally  were  compact  (Maps  A  and  C) .  The  challenged  redistricting 
plan  combined  rural  and  urban  areas  in  each  new  district,  resulting  in 
district  boundaries  with  irregular  shapes  and  many  sides  (Map  B) ,  and 
divided  the  black  population  concentration  formerly  within  old  District 
4  among  four  of  the  five  new  districts  (Map  D) .  In  the  bottom  two  maps 
census  enumeration  districts  are  shaded  for  racial  percentage. 


COMMENTS 

INSTALLMENT  SALES  OF  REAL  ESTATE  UNDER  THE 
INTERNAL  REVENUE  CODE 

I.     Introduction 

Each  year  practitioners  are  involved  in  a  substantial  number  of  de- 
ferred payment  sales  or  dispositions  of  real  property,  ranging  from  the 
sale  of  a  personal  residence  to  the  sale  of  large  tracts  of  land  for  com- 
mercial development.  Income  tax  consequences  arising  from  deferred 
sales  may  prove  to  be  a  trap  for  the  unwary  vendor,  since  any  gain 
realized  on  such  sale  often  creates  an  immediate  tax  liability  in  excess  of 
the  cash  received  in  the  year  of  sale.  Deferred  payment  sales  present 
special  income  tax  problems  to  vendors  since  only  a  small  portion  of  the 
selling  price  is  paid  in  the  year  of  sale  while  the  larger  portion  rests  in 
the  buyer's  unrealized  promise  to  pay,  secured  by  a  mortgage  or  deed 
of  trust.  The  installment  sales  provisions  of  the  Internal  Revenue  Code1 
are  relief  provisions  and  exceptions  to  the  general  rule  as  to  the  year 
for  reporting  income.2  The  installment  sales  provisions  offer  the  vendor 
an  elective  method  of  reporting  gain  realized  from  the  sale  or  disposition 
of  certain  property  in  those  years  in  which  the  installment  payments  are 
actually  received.  This  advantage  of  spreading  the  seller's  income  tax 
liability  over  future  years  assists  in  providing  a  market  for  property 
which  would  otherwise  be  nonexistent  were  the  seller  to  limit,  because 
of  tax  consequences,  the  sale  to  cash  purchasers.  The  installment  method 
is  also  advantageous  in  that  it  avoids  the  affect  of  the  progressive  tax 
rates,  thereby  possibly  reducing  the  overall  tax  on  the  sale.  Furthermore, 
use  of  the  installment  method  will  enable  the  seller  to  utilize  de- 
ferred tax  dollars  to  generate  additional  income  or  otherwise  use  the 
deferred  tax  dollars  in  his  business. 

This  comment  will  examine  the  technical  requirements  of  the  in- 
stallment provisions  with  respect  to  sales  of  real  property  and  attempt  to 

iInt.  Rev.  Code  of  1954,  §  453. 

22  J.  Mertens,  Law  of  Federal  Income  Taxation  §  15.01  (Rev.  Ed.  1967)  .  The 
installment  method  of  reporting  income  was  first  recognized  by  the  income  tax 
regulations,  Treas.  Reg.  33  (revised),  art,  116-17  (1918) .  The  Board  of  Tax  Appeals 
in  B.B.  Todd,  Inc.,  1  B.T.A.  762  (1925) ,  invalidated  these  regulations  on  the  grounds 
that  the  installment  method  was  not  recognized  by  statute  and  did  not  accurately 
reflect  the  income.  The  Revenue  Act  of  1926  gave  statutory  approval  to  the  in- 
stallment sales  provision  in  substantially  the  same  form  as  it  is  today.  Revenue  Act 
of  1926,  ch.  27,  §  212  (d) ,  44  Stat.  23.  See  generally  2  Mertens,  supra  §  15.02. 

425 


426  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

survey  various  problem  areas  and  pitfalls  associated  with  this  method 
of  reporting  income. 

II.    Deferred  Payment  Sales  Not  Under  the  Installment  Method 
A.     Cash  Basis  Taxpayers 

Prior  to  analyzing  the  statutory  requirements  of  the  installment 
method  of  reporting  income,  it  is  appropriate  to  examine  the  tax  treat- 
ment of  a  sale  or  disposition  under  an  installment  arrangement  which 
does  not  qualify  for  the  installment  method;  or,  if  qualified,  is  not 
elected  to  be  so  treated.  The  general  rule  is  that  the  gain  from  the  sale 
or  disposition  of  property  is  the  excess  of  the  amount  realized  over  the 
adjusted  basis  of  the  property.3  Loss  from  such  sale  or  disposition  is  the 
excess  of  such  adjusted  basis  over  the  amount  realized.4  The  computa- 
tion of  the  amount  realized5  in  deferred  payment  sales  includes  the  fair 
market  value  of  any  obligations  of  the  vendee  received  by  the  vendor, 
as  well  as  any  assumption  of  a  mortgage  or  other  indebtedness  by  the 
vendee.6  For  example,  a  calendar  year  taxpayer  sells  real  property 
having  an  adjusted  basis  of  $52,000  for  a  selling  price  of  $100,000  pay- 
able as  follows:  cash  downpayment,  $20,000;  buyer's  assumption  of  exist- 
ing mortgage,  $20,000;  and  notes  (evidence  of  indebtedness  of  vendee) , 
$60,000  (having  a  fair  market  value  of  $60,000)  payable  in  yearly 
installments  of  $10,000  over  the  next  6  years.  The  total  amount  realized 
is  $100,000,  and  the  taxpayer  would  recognize  an  immediate  gain  of 
$48,000  if  the  installment  method  is  unavailable  or  not  elected  in  the 
year  of  sale. 

Deferred  payment  obligations  of  the  purchaser  which  have  a  fair 
market  value7  less  than  their  face  amount  will  result  in  a  correspondingly 
lesser  amount  of  gain  to  be  recognized  by  the  seller  in  the  year  of  sale. 
Nevertheless,  the  seller  may  be  forced  to  recognize  ordinary  discount 
income  in  subsequent  years  if  the  obligations  are  liquidated  at  their  face 
value.  In  Shafpa  Realty  Corp.,8  the  taxpayer,  in  receiving  part  payments 

sInt.  Rev.  Code  of  1954,  §  1001  (a) . 

*Id. 

5"Amount  realized"  is  defined  as  the  sum  of  any  money  received  plus  the  fair 
market  value  of  the  property  (other  than  money)   received.  Id.  §  1001  (b) . 

eCrane  v.  Commissioner,  331  U.S.  1  (1946) ;  Smith  v.  Commissioner,  324  F.2d 
725    (9th  Cir.   1964). 

7For  a  discussion  of  the  valuation  of  deferred  payment  obligations,  see  Note, 
Taxation  of  Deferred  Payment  Sales  of  Realty  and  Casual  Sales  of  Personalty,  10 
Utah  L.  Rev.  195,  203-20  (1966) . 

88  B.T.A.  283   (1927) . 


1973]  COMMENTS  427 

on  a  mortgage  note  acquired  at  a  20  percent  discount  from  its  face  value, 
contended  that  such  payments  could  not  give  rise  to  ordinary  income 
until  his  basis  in  the  obligation  had  first  been  recovered.  The  Board  of 
Tax  Appeals  upheld  the  Commissioner's  contention  that  each  payment 
made  was  a  payment  on  the  face  of  the  mortgage,  80  percent  of  which 
represented  a  return  on  the  principal  and  20  percent  a  realization  of 
discount  income.6 

If  the  consideration  received  by  the  vendor  has  no  ascertainable 
fair  market  value,  the  "cost  recovery"  method  may  be  used  to  report  the 
gain  or  loss  arising  from  such  transaction.10  In  the  leading  case  of  Burnet 
v.  Logan,11  the  taxpayer  sold  shares  of  mining  stock  for  which  she  re- 
ceived cash  and  a  stipulated  sum  per  ton  of  ore  actually  mined.  The  tax- 
payer contended  that  since  the  contract  of  sale  lacked  a  definite  output 
requirement,  no  gain  should  be  recognized  until  her  cost  had  first  been 
recovered.  The  Supreme  Court  found  the  fair  market  value  of  the  con- 
tract for  future  payments  to  be  unascertainable  and  held  that  the  tax- 
payer was  entitled  to  recover  her  basis  prior  to  realizing  any  income 
from  the  transaction.  Accordingly,  when  the  "cost  recovery"  method  is 
used,  the  transaction  will  be  regarded  as  "open,"  and  the  "sale  or  ex- 
change" element  of  a  capital  gain12  will  be  deemed  present  throughout 
the  duration  of  the  subsequent  installment  payments.13  The  current 
regulations14  have  embodied  the  doctrine  of  Burnet  v.  Logan  but  fail  to 
establish  criteria  to  aid  in  the  determination  of  the  lack  of  a  fair  market 
value.  It  is  stated  that  "[o]nly  in  rare  and  extraordinary  cases  does  prop- 
erty have  no  fair  market  value."15 

In  Ravlin  Corp.16  the  taxpayer,  a  Florida  real  estate  developer, 
succeeded  in  convincing  the  Board  of  Tax  Appeals  that  outstanding 
deferred  payments  on  contracts  for  the  sale  of  lots  had  no  fair  market 
value  where  the  paper  was  not  acceptable  as  collateral  for  a  loan  nor 
could  it  otherwise  be  realized  on.   In  Joliet-Norfolk  Farm  Corp.11  it  was 

QSee  also  Walter  H.  Potter,  44  T.C.  159   (1965) . 

losee  Treas.  Reg.  §  1.453-6  (a)  (2)     (1958). 

H283  U.S.  404   (1931). 

i2ln  order  to  obtain  capital  gain  treatment,  there  must  have  been  a  "sale  or 
exchange"  of  a  capital  asset.  See  Int.  Rev.  Code  of  1954,  §  1222.  "The  term  long- 
term  capital  gain'  means  gain  from  the  sale  or  exchange  of  a  capital  asset  held  for 
more  than  6  months  .  .  .  ."  Id.  §  1222  (3)  . 

isNote  that  in  the  Shafpa  situation  subsequent  payments  might  produce 
ordinary  income  presumably  because  the  sale  or  exchange  was  deemed  to  have  taken 
place  in  the  year  of  sale. 

"Treas.  Reg.  §  1.453-6  (a)  (2)     (1958). 

is/rf.  See  also  Rev.  Rul.  58-402,  1958-2  Cum.  Bull.  15. 

1619  B.T.A.  1112   (1930). 

178  B.T.A.  824    (1927) . 


428  MISSISSIPPI  LAW  JOURNAL  [vol:  44 

likewise  held  that  where  notes  secured  by  a  second  mortgage  could  not 
be  sold  for  more  than  25  percent  of  their  face  value,  the  second  mortgage 
notes  had  no  readily  realizable  market  value.  In  other  instances,  the 
courts  have  regarded  the  mere  contractual  obligation  of  the  purchaser, 
without  any  notes  or  other  evidence  of  indebtedness,  to  have  no  ascer- 
tainable market  value.18  Nevertheless,  the  courts  have  expressed  re- 
luctance to  hold  the  fair  market  value  of  negotiable  or  unconditional 
obligations  to  be  unascertainable.  In  Edward  J.  Hudson,™  the  Tax 
Court  held  that  nonnegotiable  notes,  the  payment  of  which  was  subject 
to  complicated  conditions,  were  not  the  equivalent  of  cash  and  not 
income  to  the  cash  basis  taxpayer  in  the  year  the  notes  were  given.20 
A  similar  result  was  reached  by  the  Board  of  Tax  Appeals  in  Dudley 
T.  Humphrey,21  where  a  cash  basis  taxpayer  contended  that  certain 
nonnegotiable  notes  received  upon  the  sale  of  his  partnership  interest 
should  not  be  included  in  his  income  for  the  year  in  which  they  were 
given.  The  Board  held  that  a  mere  promise  to  pay  in  the  future  which 
is  not  accepted  as  payment,  but  only  as  evidence  of  indebtedness,  should 
not  be  equated  with  the  receipt  of  cash.22 

B.    Accrual  Basis  Taxpayers 

Under  the  accrual  method  of  accounting  the  right  to  receive,  not 
the  actual  receipt,  determines  the  inclusion  of  the  amount  in  gross  in- 
come.23 The  regulations  state  that  income  is  includible  in  gross  income 
when  all  the  events  have  occurred  which  fix  the  right  to  receive  such 
income  and  the  amount  can  be  determined  with  reasonable  accuracy.24 
In  this  regard,  it  has  been  generally  held  that  an  accrual  basis  vendor 
must  include  the  face  amount  of  a  purchaser's  note,  rather  than  the  fair 
market  value,  in  computing  the  gain  upon  the  sale  or  disposition  of 


isEstate  of  Clarence  W.  Ennis,  23  T.C.  799  (1955) .  See  also  Cambria  Dev.  Co.,  34 
B.T.A.  1155  (1936)  (no  buyer  could  be  found  to  purchase  lots  at  any  price);  W.  B. 
Geary,  6  B.T.A.  1109  (1927),  modified,  30  F.2d  1011  (4th  Cir.  1928)  (no  notes  or 
other  evidence  of  indebtedness   but  obligation  was  unconditional) . 

1911  T.C.  1042    (1948),  aff'd  per  curiam,  183  F.2d  180   (5th  Cir.  1950). 

MSee  also  Mainard  E.  Crosby,  14  B.T.A.  980  (1929) . 

2i32  B.T.A.  280  (1935) . 

^See  also  Bedell  v.  Commissioner,  30  F.2d  622,  624  (2d  Cir.  1929),  where  Judge 
Learned  Hand  stated,  "[I]t  is  absurd  to  speak  of  a  promise  to  pay  a  sum  in  the 
future  as  having  a  'market  value,'  fair  or  unfair." 

23Spring  City  Foundry  Co.  v.  Commissioner,  292  U.S.  182    (1934) . 

24Treas.  Reg.  §  1.451-1  (a)  (1957) .  See  also  H.  Liebes  &  Co.,  90  F.2d  932  (9th 
Cir.   1937). 


1973]  COMMENTS  429 

property.25  In  Fisher  Brown,26  the  same  result  was  reached  despite  the  fact 
that  the  note  was  never  paid,  but  was  returned  to  the  purchaser  in  a 
later  year.  The  Tax  Court  stated  that  "[n]either  an  event  of  a  later  year 
making  ultimate  payment  doubtful  nor  the  recission  of  the  sale  in  a 
later  year  is  relevant  to  the  propriety  of  accruing  an  obligation  as  income 
in  the  year  in  which  the  right  to  receive  payment  was  fixed."27  Never- 
theless, there  are  cases  holding  that  an  amount  need  not  be  accrued  and 
included  in  gross  income  by  an  accrual  basis  taxpayer  where  it  appears, 
in  the  year  of  accrual,  that  the  amount  is  uncollectible  and  there  is  little 
or  no  likelihood  of  collection  in  the  future.28 

III.     The  Statutory  Requirements  —  Section  453  (b) 
A.     General 

The  current  installment  sales  provision  of  the  Internal  Revenue 
Code29  permits  a  seller  to  report  as  gain  in  subsequent  years  that  portion 
of  yearly  receipts  from  the  sale  that  the  gross  profit  from  the  sale  bears 
to  the  contract  price.30  The  installment  method  of  reporting  is  avail- 
able for  (1)  sales  of  real  estate  by  dealers  and  non-dealers,31  and 
(2)  casual  sales  or  other  disposition  of  personal  property  where  the  sell- 
ing price  exceeds  $1,000.32  The  application  of  section  453  (b)  to  the 
above  sales  or  dispositions  is  further  limited  by  the  requirement  that 
payments  in  the  year  of  sale  (exclusive  of  indebtedness  of  the  purchaser) 
may  not  exceed  30  percent  of  the  selling  price.33  Moreover,  the  install- 
ment sales  method  is  not  available  for  reporting  losses  incurred  upon 
the  sale  or  disposition  of  the  above  property.34 

25See,  e.g.,  George  L.  Castner  Co.,  30  T.C.  1061  (1958)  ;  Fisher  Brown,  9  CCH 
Tax  Ct.  Mem.  1054    (1950) . 

269  CCH  Tax  Ct.  Mem.  1054    (1950) . 

27/d.  at  1060. 

28Corn  Exch.  Bank  v.  United  States,  37  F.2d  34  (2d  Cir.  1930) ;  Joy  Mfg.  Co., 
23  T.C.  1082  (1955);  O'SuUivan  Rubber  Co.,  42  B.T.A.  721  (1940);  Marguerite 
Hyde  Suffolk  &  Berks,  40  B.T.A.  1121  (1939);  American  Fork  &  Hoe  Co.,  33  B.T.A. 
1139  (1936);  Atlantic  Coast  Line  R.R.,  31  B.T.A.  730,  749  (1934);  Oregon  Terminals 
Co.,  29  B.T.A.  1332    (1934) . 

23Int.  Rev.  Code  of  1954,  §  453. 

3»/d.  §  453  (a)  (1)  . 

sild.  §  453  (b)  (1)  (A) . 

32/d.  §  453  (b)  (1)  (B)  . 

33/d.  §  453  (b)  (2)  (A) . 

34Martin  v.  Commissioner,  61  F.2d  942  (2d  Cir.  1932) ,  cert,  denied,  289  U.S.  737 
(1933)  .  See  also  Rev.  Rul.  70-430,  1970-2  Cum.  Bull.  51,  where  a  loss  sustained  on 
an  installment  sale  of  business  assets  is  deductible  only  in  the  taxable  year  in  which 
the  sale  is  made. 


430  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

The  installment  sales  method  is  also  available  in  transactions  which 
produce  gain,  some  of  which  is  insulated  by  the  various  nonrecognition 
provisions  of  the  code.  For  example,  if  a  taxpayer  sells  his  residence 
having  a  basis  of  $20,000  for  a  selling  price  of  $30,000  and  acquires  a 
new  residence  for  $25,000  within  the  1-year  period  prescribed  by  sec- 
tion 1034,35  he  will  realize  a  gain  of  $10,000,  but  will  recognize  only 
$5,000.  If  the  30  percent  ceiling  on  payments  in  the  year  of  sale  is  met, 
the  gain  recognized  as  a  result  of  section  1034  should  be  eligible  for  in- 
stallment reporting  under  section  453  (b)  .36  If  the  sales  contract  pro- 
vided for  a  cash  downpayment  of  $5,000  in  the  year  of  sale  and  $5,000 
in  each  of  the  5  subsequent  years,  one-sixth  ($5,000  taxable  gain  -r- 
$30,000  contract  price)  of  each  payment  received  on  the  principal  of  the 
note  or  mortgage  is  includible  in  the  seller's  income.37 

This  result  is  not  apparent  from  the  statute  itself,  since  section 
453  (a)  addresses  itself  to  gross  profit  to  be  realized  and  seems  to  ignore 
the  possibility  that  some  of  the  gain  may  not  be  recognized.  Such  a 
literal  reading  of  the  statute  would  render  ineffective  the  nonrecognition 
sections  when  the  taxpayer  seeks  to  employ  section  453  (b)  to  defer  his 
gain.  It  can  hardly  be  argued  that  Congress  intended  such  a  result  when 
the  installment  method  is  elected.38  The  Commissioner  has  specifically 
approved  the  use  of  the  installment  method  in  certain  nonrecognition 
transactions  in  Revenue  Ruling  65-1 55, 39  where  it  was  held  that  a  tax- 
payer who  claims  the  benefits  of  section  1031,  relating  to  like-kind  ex- 
changes of  productive  business  or  investment  property,  with  additional 
payments  to  be  received  in  subsequent  years,  may  elect  the  installment 
method,  provided  that  the  transaction  otherwise  qualifies. 

Accordingly,  gain  attributable  to  the  receipt  of  recognition  property 
(boot)  under  section  351,  relating  to  transfers  to  controlled  corporations, 
may  be  reported  under  the  installment  method,  provided,  of  course,  the 
seller  does  not  receive  more  than  30  percent  of  the  selling  price  in  the 
year  of  disposition.40    For  example,  if  a  taxpayer  transfers  real  property 

35Int.  Rev.  Code  of  1954,  §  1034,  which  concerns  nonrecognition  of  gain  derived 
from  the  sale  or  exchange  of  a  residence. 

seRev.  Rul.  75,  1953-1  Cum.  Bull.  83. 

slid.,  which  states: 

[T]he  amount  of  the  recognized  gain  to  be  included  in  gross  income  in  each 

taxable  year  in  which  an  installment  payment  is  received  is  that  portion  of 

the  installment  payments  actually  received  in  that  year  which  the  total  gain 

to  be  recognized  under  section  112  (n)    [now  Int.  Rev.  Code  of  1954,  §  1034] 

bears  to  the  total  contract  price. 

*%See  Emory,  The  Installment  Method  of  Reporting  Income:  Its  Election,  Use, 
and  Effect,  53  Cornell  L.  Rev.  181,  203    (1968) . 

391965-1  Cum.  Bull.  356.  See  also  Rev.  Rul.  75,  1953-1  Cum.  Bull.  83. 

40Some  commentators  are  of  the  opinion  that  section  453  does  not  apply  to 
gain  recognized  in  a  section  351  transfer.  See  Emory,  supra  note  38,  at  204  n.83. 


1973]  COMMENTS  431 

with  a  basis  of  $10,000  to  a  corporation  in  return  for  stock  worth  $15,000, 
cash  in  the  amount  of  $20,000,  and  an  installment  note  with  payments  of 
$8,000  annually  for  the  next  8  years  subsequent  to  the  year  of  sale, 
the  recognized  gain  of  $20,000,  by  virtue  of  section  351,  would  qualify 
for  installment  reporting  under  section  453  (b) ,  provided  the  taxpayer 
complies  with  the  control  requirement.41 

The  installment  method  is  an  elective  method  of  reporting  gain  and 
is  binding42  once  election  is  made  for  a  particular  taxable  year.43  A  sep- 
arate election  under  section  453  (b)  may  be  made  with  respect  to  each 
sale  of  real  property  and  has  no  effect  on  the  ability  of  the  seller  to  elect 
the  installment  method  for  transactions  in  subsequent  years.  Moreover, 
the  fact  that  the  taxpayer  may  have  employed  the  accrual  method  of 
accounting  in  prior  years  is  immaterial  in  regard  to  his  electing  the  in- 
stallment method  in  the  current  taxable  year.44  The  silence  of  the  code 
and  the  regulations45  as  to  the  time  for  electing  the  installment  method 
for  reporting  gains  from  real  estate  sales  has  resulted  in  a  divergence  of 
views  within  the  courts.  The  Internal  Revenue  Service  attempted  to 
resolve  this  problem  by  publishing  Revenue  Ruling  65-29746  which 
states  in  part: 

if  in  good  faith,  the  taxpayer  failed  to  exercise  the  installment 
method  election  to  report  income  from  the  sales  of  real  property 
on  a  timely  filed  return  for  the  year  of  sale,  the  Service  will 
recognize  as  valid  elections  made  under  the  following  circum- 
stances: 

(2)  those  cases  where  election  of  the  installment  method  was 
made  on  an  amended  return  for  the  year  of  sale  not  barred  by 
statute  of  limitations.  .  .  ,  if  the  facts  indicate  no  election  in- 
consistent with  the  installment  election  had  been  made  with  re- 
spect to  the  sale. 

(3)  those  cases  where  the  election  had  been  made  on  a  delin- 
quent return  for  the  year  of  sale.47 

^See  Int.  Rev.  Code  of   1954,  §§  351(a),  368(c). 

42ln  Ivan  D.  Pomeroy,  54  T.C.  1716  (1970) ,  it  was  held  that  a  valid  installment 
election,  although  based  upon  an  erroneous  computation,  in  connection  with  a 
sale  of  real  estate  could  not  later  be  revoked. 

43For  an  extended  analysis  of  the  problems  surrounding  the  election  of  the 
installment  method,  see  Emory,  supra  note  38,  at  215-31;  Note,  Taxation— Install- 
ment Sales:  Elections  Under  Section  453,  40  Miss.  L.J.  302  (1969) ;  Note,  Income 
Tax— Election  Under  the  Installment  Sales  Provision,  9  Utah  L.  Rev.  403    (1964)  . 

44Davenport  Mach.  &  Foundry  Co.,  18  T.C.  39  (1952) . 

MSee  Treas.  Reg.  §   1.453-8  (b)  (1)    (1958). 

461965-2  Cum.  Bull.  152. 

47/d.   at   152-53. 


452  MISSISSIPPI  LA  W  JO  URNAL  [vol.  44 

The  ruling  further  states  that  such  election  made  on  a  delinquent  return 
will  not  be  considered  valid  if  the  assessment  or  collection  of  any  portion 
of  the  resulting  tax  is  barred  by  the  statute  of  limitations.48  Moreover, 
the  Commissioner  acquiesced  in  a  number  of  cases  involving  the  circum- 
stances under  which  a  timely  election  will  be  deemed  to  have  been  filed.49 

The  position  of  the  service  as  stated  in  the  ruling  would  seem  to 
preclude  an  election  under  section  453  (b)  if,  in  a  previous  year,  the  tax- 
payer had  elected  to  treat  a  transaction  as  one  not  under  the  installment 
method  and  such  method  was  held  invalid  in  a  subsequent  year.  For 
example,  assume  a  taxpayer,  in  disposing  of  property,  receives  notes, 
which  he  feels  to  have  no  ascertainable  market  value,  and  elects  to  report 
his  gain  on  the  cost  recovery  method.  If  subsequently  the  service  de- 
termined that  the  notes  did  have  a  definite  fair  market  value  which 
barred  the  use  of  the  cost  recovery  method,  it  would  appear  that  the 
taxpayer  would  be  precluded  from  utilizing  the  installment  method 
with  regard  to  his  recalculated  tax  liability.  Such  was  the  holding  of 
the  Tax  Court  in  Mamula  v.  United  States50  where  the  taxpayer  chose  to 
report  the  income  from  the  sale  of  real  property  on  the  cost  recovery 
method,  since  he  believed  the  notes  he  received  to  have  no  ascertainable 
value.  Although  the  Tax  Court  upheld  the  Commissioner's  finding  that 
the  notes  did  have  an  ascertainable  value  and  the  cost  recovery 
method  was  unavailable,  the  court  of  appeals  reversed  and  held  that  an 
unallowable  method  originally  selected  in  good  faith  and  fully  disclosed 
should  not  preclude  the  subsequent  use  of  section  453(b).51 

48/d.  at  153. 

*9See,  e.g.,  Baca  v.  Commissioner,  326  F.2d  189  (5th  Cir.  1964)  ,  rev'g  38  T.C.  609 
(1962)  (election  may  be  made  on  a  late  return  even  though  failure  to  file  a  timely 
return  was  attributed  to  negilence)  ;  The  Glidden  Co.  v.  United  States,  241  F.  Supp. 
195  (N.D.  Ohio  1964)  (an  election  may  be  made  where  a  "lease"  is  subsequently 
held  to  be  a  sale  prior  to  expiration  of  the  statute  of  limitations)  ;  Jack  Farber,  36 
T.C.  1142  (1961),  aff'd  on  other  grounds,  312  F.2d  729  (2d  Cir.  1963)  (election  is 
valid  if  made  on  a  return  for  the  first  taxable  year  in  which  any  portion  of  the 
selling  price  is  received)  ;  John  F.  Bayley,  35  T.C.  288  (1960)  (gain  realized  under 
section  1034,  which  is  later  held  inapplicable,  may  be  reported  on  the  installment 
method  through  an  amended  petiton  to  the  Tax  Court)  ;  Robert  L.  Griffin,  24  CCH 
Tax  Ct.  Mem.  467  (1965)  (election  may  be  made  on  an  amended  return  filed  prior 
to  the  receipt  of  any  portion  of  the  selling  price)  . 

50346  F.2d  1016    (9th  Cir.   1965)  ,  rev'g  41   T.C.  572    (1964)  . 

siSee  John  Harper,  54  T.C.  1121  (1970),  where  the  taxpayers  fraudulently  failed 
to  report  the  sale  of  real  estate  until  the  omission  was  discoverel  by  the  Commissioner. 
A  subsequent  attempt  to  elect  the  installment  method  was  thwarted  by  the  Tax 
Court,  which  distinguished   the  honest  mistake  made  in  Mamula. 


1973]  COMMENTS  433 

The  code52  and  the  regulations53  clearly  indicate  that  the  absence 
of  any  installment  payment  in  the  year  of  sale  will  not  prevent  an  elec- 
tion under  section  453  (b) .  Furthermore,  the  Commissioner  and  Tax 
Court  have  ruled  that  the  installment  method  will  be  available  to  those 
sales  of  real  estate  which  provide  for  two  or  more  payments  in  2  or 
more  taxable  years.54  Accordingly,  a  lump  sum  payment  in  a  year  sub- 
sequent to  the  sale  would  not  qualify  for  installment  treatment  under 
section  453  (b) .  In  10-42  Corporation,55  the  taxpayer  sold  real  property 
under  an  agreement  providing  for  the  execution  of  a  purchase-money 
mortgage  due  in  11  years  in  a  single  payment.  The  Tax  Court  held 
that  the  taxpayer  could  not  avail  itself  of  the  installment  method  under 
section  453  (b)  and  that  the  elimination  of  the  initial  payments  rule  of 
prior  law  did  not  alter  this  dual-installment  requirement  of  section 
453 (b) . 

B.  Sale  or  other  Disposition  of  Property 

In  order  for  any  real  property  transaction  to  qualify  for  installment 
treatment  under  section  453  (b) ,  there  must  be  a  "sale  or  other  disposi- 
tion" of  the  property.56  While  deceptively  simple  in  appearance,  the 
phrase  "sale  or  other  disposition"  has  been  the  subject  of  much  con- 
troversy within  the  courts,  particularly  in  those  cases  involving  leases, 
substitute  compensation,  and  assignment  of  income.  The  determination 
of  a  transaction's  eligibility  for  installment  reporting  has  largely  turned 
on  the  property  status  of  the  subject  matter  involved  in  the  transfer. 
In  Charles  E.  Sorensen51  the  Tax  Court  held  that  proceeds  realized  from 
the  sale  of  stock  options,  received  by  the  taxpayer  as  compensation,  pro- 
duced ordinary  income  rather  than  capital  gain,  and  that  such  proceeds 
were  not  eligible  for  installment  treatment  under  section  453  (b)  ,58  In 
Realty  Loan  Corp.,59  the  taxpayer  sold  a  mortgage  service  business  whose 

52Int.  Rev.  Code  of  1954,  §  453  (b)  (2)  (A)  (i) . 

ssTreas.  Reg.  §   1.453-4  (b)  (1)     (1958). 

5410-42  Corp.,  55  T.C.  593  (1971) ;  Thomas  F.  Prendergast,  22  B.T.A.  1259  (1931)  ; 
Rev.  Rul.  69-462,  1969-2  Cum.  Bull.   107. 

5555  T.C.  593    (1971) . 

56Int.  Rev.  Code  of  1954,  §  453  (b)  (1)  (A) . 

5722  T.C.  321    (1954) . 

s&See  also  Lozoff  v.  United  States,  67-1  US.  Tax  Cas.  f  9436  (E.D.  Wis.  1967) 
(amount  received  for  release  from  personal  service  contract  held  to  be  ordinary 
income  and  not  gain  from  the  sale  or  exchange  of  a  capital  asset.  Consequently, 
the  installment  method  was  not  available)  ;  Leonard  Hyatt,  30  P-H  Tax  Ct.  Mem. 
■fl- 61,318  (1961),  (assignment  of  insurance  agency  management  contract  held  to  be 
a  substitute  for  future  compensation  and  ineligible  for  installment   treatment) . 

5954  T.C.   1083    (1970). 


434  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

activity  consisted  primarily  of  collecting  mortgage  payments  and  remit- 
ting them  to  the  insurance  companies  to  whom  they  had  been  assigned 
by  the  taxpayer.  The  sale  of  the  business  included  the  right  to  receive 
future  service  fees  on  mortgages  serviced  by  the  company.  In  allocating 
the  sales  price  between  goodwill,  which  received  capital  gain  treatment, 
and  the  right  to  future  income,  which  was  treated  as  ordinary  income, 
the  Tax  Court  held  that  since  both  capital  assets  and  the  right  to  future 
income  "are  property"  and  the  right  to  such  income  is  not  compensa- 
tion for  services,  the  taxpayer  could  report  the  entire  gain  on  the 
installment  method.  The  court  distinguished  Sorensen  by  stating  that 
had  the  taxpayer  there  exercised  his  options,  the  difference  in  the 
fair  market  value  and  the  option  price  would  have  been  income  at 
that  time  as  compensation  for  services— the  same  result  ensuing  from 
the  sale  of  the  options.  The  court  noted  that  had  the  taxpayer  in  Realty 
retained  the  mortgage  business,  it  would  have  received  income  spread 
over  the  next  8  years  and  would  have  serviced  the  mortgages.  The  court 
decided  that  the  income  sold  by  the  taxpayer  was  not  compensation  for 
services,  as  in  Sorensen,  but  rather  was  future  profit  to  be  realized  from 
services  rendered  by  another  after  the  sale.60 

While  the  former  cases  illustrate  the  problems  encountered  by  the 
courts  when  construing  transactions  involving  property  other  than  real 
estate,  many  of  the  problems  stemming  from  the  ordinary  income-com- 
pensation dichotomy  become  ancillary  to  others  when  applied  to  trans- 
actions involving  real  property.  Since  section  453  (b)  clearly  applies  to 
both  nondealers  and  dealers  of  real  property,  the  applicability  of  the  in- 
stallment method  to  real  estate  transactions  should  not  depend  upon  the 
character  of  the  gain  realized  on  the  sale  or  disposition.  Potential  prob- 
lems in  the  area  of  real  property  transactions  are  centered  around  the 
classification  of  a  particular  transaction  as  a  sale  or  lease  and  also  the 
assignment  of  income. 

In  the  recent  case  of  Modiano-Schn eider,  Inc.  v.  Commissioner,61  a 
doctor  attempted  to  acquire  100  percent  financing  of  a  hospital  and 
medical  building  to  be  constructed  upon  his  property.  The  doctor  con- 
veyed the  property  to  the  taxpayer,  a  construction  corporation,  which 
was  successful  in  securing  the  necessary  financing.  After  the  taxpayer 
reconveyed  the  property  to  the  doctor,  subject  to  a  deed  of  trust,  the 
property  was  leased  to  the  taxpayer,  who  then  subleased  the  property 
to  a  partnership  which  included  the  doctor.  The  lease  provided  that  the 
doctor  could  terminate  the  lease  by  paying  a  stipulated  amount  for  each 

eoBoth   the  government   and   the   taxpayer   have   appealed   the   decision   to   the 
Ninth  Circuit  Court  of  Appeals. 

ei42  P-H  Tax  Ct.  Mem.  f  73,005  (1973) . 


1973]  COMMENTS  435 

month  remaining  in  the  lease.  When  a  subsequent  partnership  reorgani- 
zation resulted  in  the  termination  of  the  doctor's  interest,  the  taxpayer 
reported  as  long  term  capital  gain  the  payment  received  pursuant  to  the 
lease  cancellation  agreement.  The  Tax  Court  rejected  the  Commission- 
er's determination  that  the  taxpayer  was  attempting  to  report  income 
from  a  construction  contract  by  the  installment  method,  and  held  the 
gain  to  be  taxable  as  a  capital  gain  because  it  resulted  from  the  cancella- 
tion of  a  bona  fide  lease.62  The  court  further  noted  that  the  taxpayer 
had  assumed  substantial  obligations  as  lessee,  such  as  repairing  damage 
caused  by  fire,  earthquake,  or  other  causes  and  that  such  factors  weighed 
heavily  in  support  of  a  bona  fide,  arm's  length  transaction. 

One  example  where  land  transactions  were  held  to  be  contracts  for 
sale  rather  than  leases  is  found  in  /.  O.  Finney,63  where,  in  1955,  the  tax- 
payers purchased  certain  parcels  of  real  estate  and  later  entered  into  a 
contract  for  the  sale  of  the  property  in  the  same  year.  Title  to  the  prop- 
erty was  to  pass  to  the  purchaser  upon  payment  of  the  entire  purchase 
price.  In  the  event  of  default,  the  agreement  provided  for  immediate 
repossession  by  the  seller  and  the  forfeiture  of  all  prior  payments  as 
liquidated  damages.  Prior  to  the  purchaser's  default  in  1960,  the  tax- 
payers reported  gain  realized  from  the  sale  on  the  installment  method. 
The  Tax  Court  found  that,  while  it  was  true  that  the  rights  which  the 
purchaser  acquired  in  the  property  were  defeasible  upon  default,  the 
transaction  was  nevertheless  a  sale  and  that  the  gains  realized  therefrom 
were  reportable  on  the  installment  method.  The  result  reached  in  Finney 
is  consonant  with  the  current  regulations64  which  define  deferred  payment 
sales  of  real  property  as  including  "agreements  of  purchase  and  sale 
which  contemplate  that  a  conveyance  is  not  to  be  made  at  the  outset, 
but  only  after  all  or  a  substantial  portion  of  the  selling  price  has  been 
paid."65 

Having  once  determined  a  transaction  to  be  a  sale  or  disposition,  it 
becomes  necessary  to  determine  the  precise  subject  matter  of  the  sale. 
Real  estate  sales  of  multiple  tracts  or  parcels  present  special  problems  in 
that  taxpayers  have  frequently  contended  that  a  particular  sale  of  real 
property  is  in  fact  more  than  one  sale  and  that  each  should  be  applied 

62C/.  Billy  Rose's  Diamond  Horseshoe,  Inc.  v.  United  States,  448  F.2d  549  (2d 
Cir.  1971)  (release  of  lessee's  duty  under  a  lease  restoration  clause  in  exchange  for 
promissory  notes  held  not  to  be  a  "sale"  within  section  453) .  See  also  Rev.  Rul. 
68-226,  1968-1  Cum.  Bull.  362  (interest  of  a  lessee  in  oil  and  gas  in  place  is  an 
interest  in  real  property,  income  from  the  sale  of  which  may  be  reported  on  the 
installment  method)  . 

6337  P-H  Tax  Ct.  Mem.  {  68,283   (1968) . 

wTreas.   Reg.   §    1.453-4  (a)    (1958). 


436  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

against  the  installment  sales  requirements  to  determine  eligibility  for 
that  method  of  reporting.  On  the  other  hand,  the  Commissioner  may 
attempt  to  separate  a  single  sale  so  that  the  installment  method  will  be 
unavailable  to  two  or  more  of  the  resulting  divisions.66  While  the  regula- 
tions indicate  separate  treatment  for  sales  of  lots  or  parcels  from  a  sub- 
divided tract,67  nothing  is  stated  as  to  the  result  when  two  or  more  other- 
wise separate  sales  are  consummated  with  the  same  vendee  at  the  same 
time. 

In  Nathan  C.  Spivey,68  the  taxpayers  sold  their  farm  and  residence 
in  1957  by  a  single  deed  for  $100,000,  consisting  of  $10,000  cash  in  the 
year  of  sale  and  the  balance  to  be  paid  in  annual  installments  and  secur- 
ed by  a  deed  of  trust.  The  taxpayers  and  purchasers  agreed  that  the 
selling  price  of  the  residence  was  $12,500  and  that  payments  were  to  be 
first  applied  to  the  selling  price  of  the  house.  Thinking  the  payments 
received  in  the  year  of  sale  to  be  nontaxable  under  section  1034,  the  tax- 
payers reported  no  income  from  the  sale  of  the  property  for  the  year  1957. 
The  Commissioner  argued  that  the  sale  of  the  farm  land  and  buildings, 
including  the  residence,  was  a  single  transaction  and  that  the  taxpayers 
forfeited  their  right  to  an  installment  election  due  to  their  failure  to  do 
so  in  1957.  The  Tax  Court  disagreed  and  viewed  the  transaction  as  two 
separate  conveyances— one  involving  the  sale  of  a  residence  under  section 
1034,  and  the  other  involving  ordinary  recognition  property.  Conse- 
quently, it  was  held  that  the  installment  method  would  be  available  in 
the  first  year  in  which  recognizable  payments  were  received. 

The  taxpayer  in  Boyd  A.  Veenkant™  was  not  so  fortunate.  In  that 
case  the  taxpayer  sold  two  adjoining  parcels,  upon  one  of  which  was 
located  a  motel  and  upon  the  other  his  personal  residence.  The  contract 
was  void  of  any  allocation  of  the  purchase  price,  $80,000,  and  the  initial 
payment,  $25,000,  between  the  two  parcels.  The  taxpayer  subsequently 
attempted  to  make  such  allocation  on  his  tax  return  for  the  year  of  sale 
and  to  utilize  the  installment  method  of  reporting  the  gain  with  respect 
to  each  sale.  The  Tax  Court  determined  that  in  accordance  with  the 
contract  there  was  a  single  indivisible  sale,  the  gain  attributable  to  which 
was  not  eligible  for  installment  reporting  due  to  the  excessive  payments 
in  the  year  of  sale.70 

The  Tax  Court  decision  in  Charles  A.  Collins71  muddied  the  waters 
of  split  sales  and  the  criteria  surrounding  such  transactions.  In  Collins, 

QQSee,  e.g.,  Divine  v.  United  States,  10  Am.  Fed.  Tax  R.2d  5403   (W.D.  Tenn.  1962)  . 

evTreas.  Reg.  §  1.453-5  (a)     (1958). 

6840  T.C.  1051    (1963) . 

6937  P-H  Tax  Ct.  Mem.  f  68,119    (1968). 

wSee  also  Buckeye  Engine  Co.,  11  B.T.A.  318    (1928).    . 

7i48  T.C.  45    (1967) . 


1973]  COMMENTS  437 

the  taxpayer  sold  slightly  over  52  acres  of  land  for  approximately 
$263,000,  of  which  $118,000  was  paid  as  a  cash  down-payment  and  the 
balance  of  $145,000  represented  by  notes  secured  by  a  purchase  money 
mortgage  on  approximately  32  acres.  Despite  the  fact  that  the  payments 
in  the  year  of  sale  exceeded  the  30  percent  requirement  of  section  453  (b) 
the  Tax  Court  regarded  the  transaction  as  two  sales— one  involving  32 
acres  and  another  involving  the  remaining  unencumbered  property— 
and  held  that  the  installment  method  could  be  elected  with  respect  to 
the  mortgaged  parcel.72  The  result  in  Collins  is  overly  benevolent  to  the 
taxpayer  who  gave  no  indication  that  he  desired  separate  sale  treatment 
until  he  filed  his  tax  return  for  the  year  of  sale.  The  Collins  decision 
represents  a  clear  victory  for  form  over  substance— an  anachronism  in 
today's  tax  environment,  where  too  often  the  form  of  a  transaction  is 
pierced  to  the  detriment  of  the  taxpayer. 

C.  The  30  Percent  Ceiling 

The  requirement  that  the  taxpayer  receive  not  more  than  30  per- 
cent of  the  selling  price  in  the  year  of  sale73  is  a  basic  requirement  for 
eligibility  under  section  453  (b) .  The  "selling  price"  is  the  total  con- 
sideration received  by  the  vendor  and  includes  the  amount  of  any  mort- 
gage to  which  the  property  is  subject,  regardless  of  whether  the  property 
is  merely  taken  subject  to  the  mortgage  or  whether  the  purchaser  as- 
sumes the  mortgage.74  The  importance  of  the  determination  of  the  selling 
price  cannot  be  overemphasized,  since  the  selling  price  is  the  measuring 
rod  against  which  payments  in  the  year  of  sale  are  applied  for  the  pur- 
pose of  determining  compliance  with  the  30  percent  rule.  In  Gralapp  v. 
United  States,75  the  taxpayers  received,  as  consideration  for  the  sale  of 
interests  in  oil  and  gas  leases,  a  specified  minimum  price  plus  an  addi- 
tional amount  contingent  upon  the  oil  production  from  the  leases.  Al- 
though the  payments  in  the  year  of  sale  were  less  than  30  percent  of  the 

72The  Tax  Court  upheld  the  taxpayer's  division  of  the  sale  as  follows:  (1)  19.67 
acres  sold  for  cash  of  $98,350,  and  (2)  32.89  acres  sold  for  $164,450,  consisting  of 
$19,670  cash  and  a  mortgage  for  $144,780.  The  taxpayer  was  allowed  to  report  the 
gain  derived  from  the  sale  of  the  larger  tract  on  the  installment  method.  Id.  at  48. 
But  see  Rev.  Rul.  57-434,  1957-2  Cum.  Bull.  300,  where  if  under  state  law  or  regu- 
lations a  minimum  downpayment  exceeds  the  maximum  permitted  under  the 
installment  provision,  the  sale  does  not  qualify  for  installment  treatment.  However, 
the  use  of  the  installment  method  is  not  precluded  in  reporting  the  payment  with 
respect  to  the  remainder  of  the  property  included  in  the  sale. 

73"Year  of  sale"  refers  to  the  taxable  year  of  sale  and  not  necessarily  to  the 
12-month  period  subsequent  to  the  sale.  Int.  Rev.  Code  of   1954,  §  453  (b)  (2)  . 

74Treas.  Reg.  §  1.453-4  (c)     (1958). 

75319  F.  Supp.  265    fD.  Kan.  1970),  aff'd,  458  F.2d  1158    (10th  Cir.  1972). 


438  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

minimum  selling  price,  it  was  held  that  the  statute  contemplates  a  definite 
and  readily  ascertainable  total  contract  or  selling  price  at  the  time  the 
contract  was  made  in  order  to  qualify  for  installment  reporting.  Accord- 
ingly, the  taxpayers  were  denied  the  use  of  the  installment  method  for 
any  portion  of  the  sale. 

In  addition  to  cash  received  or  to  be  received,  the  computation  of 
the  selling  price  includes  the  fair  market  value  of  other  property  received 
by  the  seller.  An  apparent  distinction  exists  when  the  "other  property" 
consists  of  the  right  to  receive  money.  When  part  of  the  consideration 
received  by  the  seller  includes  obligations  of  persons  other  than  the  pur- 
chaser, such  obligations  must  be  included  in  the  computation  of  the  sell- 
ing price  at  their  fair  market  value.76  However,  where  the  consideration 
consists  of  obligations  of  the  purchaser,  the  obligations  are  included  at 
their  face  value.77 

While  the  30  percent  ceiling  on  year-of-sale  payments78  (exclusive 
of  the  purchaser's  evidence  of  indebtedness)  is  couched  in  simple  lan- 
guage within  the  code,  the  determination  of  what  consideration  is  actual- 
ly regarded  as  a  payment  in  the  year  of  sale  has  presented  a  thorny 
problem  for  both  the  taxpayer  and  the  courts.  The  30  percent  require- 
ment of  section  453  (b)  is  linked  to  "payments"  in  the  year  of  sale,  not 
the  payment  requirements  recited  in  the  sales  contract.  Therefore,  the 
term  "payments"  means  the  performance  of  the  consideration  provisions 
in  accordance  with  the  true  agreement  of  the  parties.79  In  Lewis  M.  Lud- 
low/0 this  principle  was  applied  when  the  installment  method  was  made 
available  to  the  taxpayer  even  though  the  transaction  failed  to  comply 
with  the  30  percent  requirement  due  to  an  error  in  computation.  The 
Tax  Court  found  that  the  true  intent  of  the  parties  evidenced  compliance 
with  the  installment  sales  provision  and  that  return  of  the  overpayment, 


76Tombari  v.  Commissioner,  299  F.2d  889  (9th  Cir.  1962)  .  In  Tombari  the 
court  held  that  the  taxpayer  could  not,  on  one  hand,  use  the  face  amount  of  a  third 
party  obligation  received  ($75,000)  to  balloon  the  selling  price  figure,  while  on  the 
other  use  the  lower  fair  market  value  of  the  obligation  ($50,000)  in  computing  the 
payments  in  the  year  of  sale. 

775ce  Emory,  supra  note  38,  at  232  n.208  which  contends  that  such  result  is 
essential  to  an  initial  determination  of  the  income  to  be  included  by  the  seller 
over  the  life  of  the  contract. 

78The  original  statute,  Revenue  Act  of  1926,  ch.  27,  §  212  (d) ,  44  Stat.  23,  used 
the  term  "initial  payments"  with  regard  to  the  30  percent  limitation.  See  2  J.  Mertens, 
supra  note  2,  at  §  15.18. 

792  J.  Mertens,  supra  note  2,  at  §  15.18. 

8036  T.C.  102    (1961) ,  acquiesced  in,  1961-2  Cum.  Bull.  5. 


1973]  COMMENTS  439 

even  though  made  in  the  following  taxable  year,  amounted  to  an  effec- 
tive reformation  of  the  contract.81 

The  sale  of  real  estate  not  infrequently  results  in  the  vendee's  as- 
sumption of  an  existing  mortgage  or  his  taking  the  realty  subject  to  the 
encumbrance.  The  regulations  provide  that  in  the  sale  of  mortgaged 
property,  whether  the  property  is  sold  subject  to  the  mortgage  or  the 
mortgage  is  assumed  by  the  purchaser,  the  mortgage  is  included  as  part 
of  the  year-of-sale  payments  only  to  the  extent  that  the  encumbrance 
exceeds  the  basis  of  the  property.82  The  purpose  of  this  regulation  has 
been  expressed  by  the  Tax  Court  as  follows: 

In  the  case  of  real  property  sold  on  the  installment  plan  where 
there  was  a  mortgage  on  the  property  which  the  buyer  either 
assumed  or  took  the  property  subject  to,  the  statutory  scheme  of 
returning  a  portion  of  each  payment  as  income  in  the  year  re- 
ceived did  not  reach  all  of  the  seller's  profit,  since  the  total 
amount  of  the  selling  price  was  not  paid  over  by  the  buyer  to 
the  seller;  that  portion  of  the  selling  price  represented  by  the 
mortgage  was  paid  by  the  buyer  directly  to  the  mortgagee.  To 
remedy  this,  regulations  were  issued.  .  .to  provide  that  the 
amount  of  the  mortgage,  to  the  extent  that  it  did  not  exceed  the 
seller's  basis  in  the  property  sold,  was  not  to  be  considered  a 
part  of  the  "initial  payments"  or  of  the  "total  contract  price."83 

Furthermore,  any  payment  in  the  year  of  sale  by  the  purchaser  with 
respect  to  an  accrued  portion  of  the  vendor's  mortgage  liability  will  be 
regarded  as  a  payment  for  the  purpose  of  the  30  percent  requirement.84 

8iC/.  Rev.  Rul.  56-20,  1956-1  Cum.  Bull.  197  (Where  vendor  reserves  right  to 
require  purchaser  to  make  payment  of  purchase  price  at  closing  either  in  cash  or 
partly  in  cash  and  notes,  acceptance  of  purchase  price  in  cash  precludes  a  subsequent 
alteration  of  the  sale  by  vendor  in  an  attempt  to  utilize  section  453) ;  Rev.  Rul.  55- 
694,  1955-2  Cum.  Bull.  299  (where  vendor  has  under  contract  of  sale  an  unqualified 
right  to  receive  total  purchase  price  during  taxable  year  of  sale,  payments  in  the 
year  of  sale  limitation  has  not  been  met  and  transaction  does  not  qualify  for  in- 
stallment treatment) . 

82Treas.  Reg.  31.453-4  (c)  (1958).  See  also  Burnet  v.  S&L  Bldg.  Corp.,  288  U.S. 
406  (1933)  ;  Walter  Kirschenmann,  57  T.C.  524  (1972)  (in  determining  whether  an 
assumed  mortage  exceeds  the  basis,  selling  expenses  were  held  not  to  be  an  addition 
to  the  basis) ;  R.A.  Waldrep,  52  T.C.  640  (1969) ,  aff'd  per  curiam,  428  F.2d  1216  (5th 
Cir.  1970) . 

83Stonecrest  Corp.,  24  T.C.  659,  665  (1955) ,  nonacquiesced  in,  1956-1  Cum.  Bull. 
6. 

s*See,  e.g.,  Sterling  v.  Ham,  3  F.  Supp.  386  (D.  Me.  1933)  (payments  by  vendor 
to  mortgagee  when  mortgage  foreclosed  several  years  prior  to  the  sale  held  to  be 
payments  in  the  year  of  sale) .  See  also  Rev.  Rul.  60-52,  1960-1  Cum.  Bull.  186 
(liabilities  of  the  seller,  which  are  assumed  and  paid  by  the  purchaser  in  the  tax- 
able year  of  sale,  are  included  as  payments  in  the  year  of  sale)  . 


440  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Nevertheless,  "installment  payments  actually  received"  does  not  include 
payments  made  by  the  vendee  to  the  mortgagee  to  reduce  the  mortgage 
assumed  in  connection  with  the  sale.85 

Since  the  regulation  requiring  inclusion  of  the  excess  of  an  assumed 
mortgage  over  the  basis  raised  qualification  problems  under  the  30  per- 
cent requirement,  taxpayers  instinctively  sought  methods  to  circumvent 
the  regulation.  In  Stonecrest  Corp./6  the  purchaser  of  mortgaged  prop- 
erty agreed  to  make  payments  on  the  purchase  price  for  a  period  of  years, 
after  which  the  seller  was  to  convey  the  property  to  the  purchaser  who 
was  then  to  take  over  the  remaining  mortgage  payments.  The  mortgage 
on  the  property  exceeded  the  seller's  basis  in  the  property.  The  Tax 
Court  held  that  under  those  facts  "there  was  no  present  assumption  of 
the  morgage  nor  was  the  property  taken  subject  to  the  mortgage,87  as 
those  expressions  are  customarily  used,"88  and  that  consequently  it  was 
error  to  include  the  excess  of  the  mortgage  over  the  basis  in  the  initial 
payments. 

A  substantially  similar  result  was  reached  in  United  Pacific  Corp./9 
where  the  Commissioner  again  sought  a  broad  application  of  the  regula- 
tion to  include  every  sale  of  mortgaged  property.  The  Tax  Court  found 
Stonecrest  indistinguishable  and  held  that  the  purchaser's  promise  to 
assume  the  mortgage  5  years  subsequent  to  the  sale  did  not  constitute 
a  present  assumption  of  the  mortgage  within  the  meaning  of  the  regula- 
tion. Thus  it  may  be  concluded  that  the  mere  fact  that  the  mortgage 
indebtedness  exceeds  the  basis  of  the  property  at  the  time  the  sales  con- 
tract is  executed  will  not  necessarily  result  in  the  excess  being  treated 
as  a  year-of-sale  payment.  Moreover,  a  vendor  who  desires  to  sell  property 
mortgaged  in  excess  of  its  basis  should  find  amnesty  from  the  regulations 
in  Stonecrest  by  delaying  conveyance  of  title  to  the  property  at  least  until 
the  mortgage  liability  has  been  reduced  to  an  amount  equal  to  or  less 
than  the  basis  of  the  property.  The  result  is  not  as  clear,  however,  when 
the  seller  simply  postpones  the  transfer  of  title  until  the  year  following 

85Burnet  v.  S&L  Bldg.  Corp.,  288  U.S.  406  (1933).  But  see  Samuel  Pollack,  47  T.C. 
92,  113  (1966),  where  the  Commissioner  unsuccessfully  argued  that  first-year  pay- 
ments on  an  assumed  mortgage  were  payments  for  the  purposes  of  the  30  percent 
rule. 

8624  T.C.  659  (1955) ,  nonacquiesced  in,  1956-1  Cum.  Bull.  6. 

s^The  Tax  Court  noted  that  in  determining  whether  a  transfer  is  made  subject 
to  a  mortgage,  a  controlling  factor  is  whether  the  mortgage  was  considered  in  ad- 
justing the  purchase  price.  Finding  no  reduction  of  the  selling  price  in  the  instant 
case,  the  court  concluded  that  the  seller  had  intended  to  pay  the  mortgage  debt  out 
of  the  proceeds  of  the  sale.  24  T.C.  at  667-68. 

ss/d.  at  668. 

8939  T.C.  721    (1963) . 


1973]  COMMENTS  441 

the  year  of  sale,  at  which  time  the  mortgage  indebtedness  still  exceeds 
the  basis  of  the  property.  Arguably,  the  contract  would  still  be  void  of 
any  present  assumption  of  the  mortgage  in  the  year  of  sale,  and  the 
regulation  would  not  apply  to  include  the  excess  of  indebtedness  over 
the  basis  as  payments  received  in  the  year  of  sale. 

If,  in  the  sale  of  mortgaged  property,  the  mortgagee  agrees  to  a 
novation  substituting  the  buyer  as  the  debtor  personally  liable  and  re- 
leasing the  seller  from  his  prior  liability,  the  entire  amount  of  the 
indebtedness  should  be  included  in  the  computation  of  year-of-sale  pay- 
ments.90 The  novation  represents  an  extinguishment  of  the  seller's  lia- 
bility to  the  mortgagee  and  resembles  a  cancellation  of  indebtedness.91 
Conceivably,  the  Stonecrest  holding  might  be  applied  to  a  transaction  in 
which  the  novation  is  postponed  until  a  subsequent  year  in  order  to 
avoid  qualification  problems  under  the  30  percent  requirement. 

Once  the  real  estate  vendor  has  determined  the  selling  price  and 
effectively  complied  with  the  30  percent  ceiling  on  year-of-sale  payments, 
he  must  next  calculate  the  "contract  price"  and  his  "gross  profit"— two 
terms  essential  to  the  computation  of  the  vendor's  ratable  gain  to  be 
recognized  upon  receipt  of  each  installment  payment.  The  contract  price 
calculation  is  identical  to  that  of  the  selling  price  with  one  exception: 
the  amount  of  any  mortgage  indebtedness  is  included  only  to  the  extent 
that  such  indebtedness  exceeds  the  basis  of  the  property.92  "Gross  profit," 
in  the  case  of  a  sale  of  real  estate  by  a  person  other  than  a  dealer,  is 
defined  as  the  selling  price  less  than  the  adjusted  basis  and  selling  ex- 
penses.93 Gross  profit  for  dealers  in  real  estate  is  computed  in  the  same 
manner  except  no  deduction  for  selling  expenses  is  allowed.  It  should 
be  remembered  that  while  the  dealer  in  real  property  is  not  afforded  a 
deduction  for  his  selling  expenses  in  the  computation  for  the  purpose 
of  the  installment  provision,  such  expenses  are  clearly  deductible  as 
ordinary  business  expenses  when  paid  or  accrued,  depending  upon  the 
accounting  method  employed.94 

The  following  example  illustrates  the  principles  of  installment  re- 
porting previously  discussed.  On  December  1,  1972,  a  calendar  year  tax- 
payer, who  is  not  a  dealer  in  real  property,  sells  land  having  a  basis  of 

905ee  Ivan  Irwin,  Jr.,  45  T.C.  544,  551    (1966)  . 

MSee  Rev.  Rul.  71-515,  1971-2  Cum.  Bull.  222  (income  from  the  sale  of  real 
property  may  not  be  reported  under  the  installment  method  where  the  buyer,  as 
part  of  the  consideration,  cancels  the  seller's  first  mortgage  note  in  an  amount  ex- 
ceeding 30  percent  of  the  selling  price)  . 

92Treas.  Reg.  §   1.453-4  (c)     (1958). 

03Treas.  Reg.  §  1.453-1  (b)     (1958),  as  amended,  T.D.  6873,  1966-1  Cum.  Bull.  101. 

94Solly  K.  Frankenstein,  31  T.C.  431  (1958) ,  aff'd,  272  F.2d  135  (7th  Cir.  1959) , 
cert,  denied,  362  U.S.  918   (1960) . 


442  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

$50,000  and  subject  to  a  mortgage  of  $20,000.  The  vendee  assumes  the 
mortgage  and,  in  addition,  agrees  to  pay  back  taxes  of  $1,000  and  ac- 
crued interest  of  $1,000.  The  vendee  pays  $10,000  cash  at  closing  and 
executes  notes  for  $70,000.  The  selling  expenses  are  $2,000.  The  vendee 
pays  the  accrued  interest  immediately  following  the  sale  but  waits  until 
January,  1973,  to  pay  the  back  taxes.  The  taxable  gain  to  be  reported 
by  the  vendor  in  1972  is  $6,710,  computed  as  follows: 

(1)  Selling  price: 

cash  paid  at  closing  $10,000 

notes  of  the  vendee  70,000 

interest  assumed  . 1,000 

taxes  assumed  1,000 

mortgage  assumed  20,000      102,000 

less: 

basis  of  the  property 50,000 

selling  expenses  2,000       52,000 

Gross  Profit  on  Sale  50,000 

(2)  Payments  in  Year  of  Sale: 

cash 10,000 

interest  paid  by  vendee  1,000        11,000 

(3)  Ratio  of  Payments  to  Selling  Price: 
11,000/102,000  does  not  exceed  30  percent 

(4)  Amount  Taxable  in  1972: 
Contract  price: 

cash  10,000 

notes  70,000 

interest  assumed  1,000 

taxes  assumed  1,000       82,000 

Gross  Profit  Ratio: 

Gross  profit  50,000 

= or  61  percent 

Contract  price  82,000 

Payments  in  year  of  sale  (11,000)  X  6\  percent, 

Amount  taxable  in  1972:  $  6,710 


IV.     Collateral  Problems 

A.  Imputed  Interest— Section  483 

The  installment  sales  regulations  provide  that  any  total  unstated  in- 
terest, as  defined  in  section  483,  under  a  contract  for  the  sale  or  exchange 


1973] 


COMMENTS 


443 


of  property  containing  payments  subject  to  section  483,  shall  not  be 
included  as  part  of  the  selling  price  or  total  contract  price.95  Unstated 
interest  or  an  unrealistically  low  rate  of  interest  may  prove  to  be  a  tax 
trap  for  the  unwary  seller,  since  a  reduction  of  the  selling  price  by  the 
amount  of  unstated  interest  may  preclude  the  use  of  the  installment 
method  due  to  the  excess  of  the  year-of-sale  payments  over  the  recomput- 
ed selling  price.  If  the  contract  provides  for  interest  at  the  rate  of  at 
least  4  percent  simple  interest  per  annum,  there  is  no  unstated  interest, 
and  section  483  is  not  applicable  to  payments  received  under  the  con- 
tract.96 Furthermore,  section  483  is  not  applicable  to  contracts  involving 
a  selling  price  of  $3,000  or  less.97  Nevertheless,  if  a  district  director  as- 
certains from  the  surrounding  facts  and  circumstances  that  a  single 
transaction  with  a  sales  price  in  excess  of  $3,000  has  been  fragmented 
into  several  smaller  transactions  to  avoid  the  application  of  section  483, 
he  may  determine  that  section  483  applies.98  If  the  contract  fails  to  pro- 
vide for  at  least  4  percent  simple  interest,  the  total  unstated  interest  is 
computed  by  discounting  each  payment  due  at  5  percent  simple  interest 
compounded  semiannually,99  reduced  by  the  present  values  of  the  interest, 
if  any,  stated  in  the  contract.100  For  example,  on  July  1,  1972,  a  calendar 
year  taxpayer,  who  is  not  a  dealer  in  real  property,  sells  real  estate  for 
$10,500  payable  as  follows:  cash  in  the  amount  of  $3,000  at  the  time  of 
sale,  and  the  balance  of  $7,500  in  three  installments  of  $2,500  each,  due 
1,  2,  and,  3  years  respectively  from  the  date  of  sale.  No  interest 
is  stated  in  the  contract.  The  present  value  of  the  payments  to  which  the 
unstated  interest  rule  applies  is  as  follows: 


Amount  of 

Deferral 

Payment 

Period 

$  3,000 

0  months 

2,500 

12 

2,500 

24 

2,500 

36 

10,500 


Present  value 

of  $1  payable 
at  end  of 

Present 
Value  of 

period 

Payment 

1.00000 

$3,000.00 

.95181 

2,379.53 

.90595 

2,264.88 

.86230 

2,155.75 

$9,800.16 

95Treas.    Reg.   §    1.453-1  (b)  (2)      (1958) ,   as   amended,   T.D.    6873,    1966-1    Cum. 
Bull.  101. 

aeTreas.  Reg.  §  1.483-1  (d)  (2)  (1966)  . 
97Int.  Rev.  Code  of  1954,  §  483  (f)  (1) . 
98Treas,  Reg.  §  1.483-2  (b)     (1966). 
99/d.  §   1.483-1  (c)  (2)  . 
iooInt.  Rev.  Code  of  1954,  §  483  (b) . 


444  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

The  total  unstated  interest  is  $699.84  ($10,500  minus  $9,800.16)  and  must 
be  deducted  from  the  original  selling  price  to  arrive  at  the  recomputed 
selling  price,  |9,800.16.  Without  considering  unstated  interest,  the  pay- 
ment received  in  the  year  of  sale  does  not  exceed  30  percent  of  the  selling 
price.  However,  the  $3,000  payment  does  exceed  30  percent  of  the  re- 
computed selling  price,  and  the  transaction,  therefore,  does  not  qualify 
for  the  installment  method  of  reporting  the  realized  gain  from  the  sale. 
It  should  be  noted  that  section  483  does  not  apply  if  the  gain  on  a  trans- 
action would  not  be  treated  as  gain  derived  from  the  sale  or  exchange  of 
a  capital  asset  or  property  described  in  section  1231.101  Thus,  dealers  in 
real  property  who  employ  the  installment  method  of  reporting  gain  from 
the  sales  of  parcels  will  rarely  encounter  section  483  since  the  parcels 
would  not  be  capital  assets  in  the  hands  of  such  dealers.102 

The  most  obvious  and  also  the  easiest  tactic  to  dilute  the  effect  of 
the  unstated  interest  provision  is  to  provide  for  at  least  4  percent  simple 
annual  interest  in  the  contract,  while  simultaneously  increasing  the  sell- 
ing price  to  compensate  for  the  difference  in  the  prevailing  market  in- 
terest rate  and  the  4  percent  contract  rate.  Thus,  if  the  prevailing  market 
interest  rate  as  8  percent,  a  taxpayer,  who  is  not  a  dealer  in  real  property, 
may  effectively  transform  4  percent  of  his  selling  price  from  ordinary 
income  into  capital  gains.  Another  solution  to  potential  qualification 
problems  under  the  30  percent  rule  due  to  unstated  interest  is  to  reduce 
the  amount  of  payments  in  the  year  of  sale  to  an  amount  less  than  or 
equal  to  30  percent  of  the  recomputed  selling  price.  The  vendor  should 
exercise  caution,  however,  in  attempting  to  qualify  for  installment  re- 
porting after  the  initial  sale  has  occurred,  as  such  attempts  have  fre- 
quently met  heated  opposition  by  the  Commissioner.103 

B.  The  Problem  of  Substitute  Collateral 

The  general  rules  for  disposition  of  installment  obligations,  i.e.  the 
note  or  mortgage  given  by  the  vendee,  provide  that  if  the  obligations  are 
sold  or  exchanged,  the  gain  or  loss  recognized  is  the  difference  between 
the  basis  of  the  obligations  and  the  amount  realized.104  If,  however,  the 
disposition  is  otherwise  than  by  sale  or  exchange,  the  gain  or  loss  recog- 
nized is  the  difference  between  the  fair  market  value  of  the  obligation 

ioi/d.  §  483  (f)  (3)  .  This  exception  applies  only  to  the  treatment  of  the  seller. 
Section  483  may  still  apply  for  determining  the  purchaser's  interest  deduction  if  the 
contract  is  one  to  which  section  483  applies.  See  Treas.  Reg.  §  1.483-2  (b)  (3)  (ii) 
(1966) . 

lozsee  Int.  Rev.  Code  of  1954,  §§  1221,  1231. 

i03See  note  82  supra. 

104Int.  Rev.  Code  of  1954,  §  453  (d)  (1)  (A)  . 


1973]  COMMENTS  445 

at  the  time  of  disposition  and  the  basis  of  the  obligation.105  The 
"basis"  of  an  installment  obligation  is  generally  the  excess  of  the  unpaid 
balance  over  an  amount  equal  to  the  income  that  would  be  reportable 
if  the  obligation  were  satisfied  in  full.106  An  important  proviso  with 
regard  to  the  disposition  of  installment  obligations  is  that  the  gain  or 
loss  recognized  upon  such  disposition  is  regarded  as  the  product  of  the 
sale  or  exchange  of  the  property  in  respect  of  which  the  obligation  was 
received  by  the  taxpayer.107  Thus,  the  character  of  the  asset  generating 
the  installment  obligation  will  determine  the  character  of  the  gain  or 
loss  recognized  upon  the  disposition.108 

Frequently,  a  vendor  will  sell  real  property  to  a  commercial  land 
developer  who  will  subsequently  attempt  to  finance  his  development 
project  through  a  third-party  lender.  If  the  installment  seller  agrees  to 
a  subordination  of  his  purchase-money  mortgage  or  accepts  substitute 
collateral  so  that  the  lender  may  obtain  a  first  mortgage  as  security  fol- 
ks loan,  the  question  arises  as  to  whether  such  substitution  is  equivalent 
to  a  disposition  of  the  vendee's  obligation  by  the  installment  seller.  Un- 
fortunately, the  question  has  not  been  resolved  to  any  degree  of  certainty 
within  the  courts. 

In  Bu'rrell  Groves,  Inc.,109  the  taxpayer  elected  the  installment  me- 
thod when  it  sold  property,  a  citrus  grove,  to  its  shareholders,  with  the 
purchase  price  being  secured  by  a  mortgage.  Upon  a  subsequent  sale  of 
the  property  by  the  shareholders,  the  taxpayer  surrendered  and  cancelled 
the  notes  and  mortgage  of  its  shareholders  and  received  notes  of  the 
new  purchaser  bearing  different  interest  and  maturity  dates  and  secured 
by  a  new  mortgage.  The  Fifth  Circuit  Court  of  Appeals  upheld  the  Tax 
Court's  determination  that  the  substitution  of  the  notes  and  the  mortgage 
amounted  to  a  disposition  and  that  the  taxpayer  was  required  to  report 
its  gain  in  the  year  it  received  the  substituted  obligations.110  The  service, 
however,  took  a  different  position  in  Revenue  Ruling  55-5111  when  it 
held  that  the  substitution  of  a  mortgage  contract,  in  an  amount  equal 
to  the  unpaid  balance  of  the  purchase  price  and  payable  on  the  same 

1051  d.  §  453  (d)  (1)  (B) . 

ioe/d.  §  453  (d)  (2) . 

107/d.  §  453  (d)  (1)  . 

lossee  Rev.  Rul.  64-178,  1964-1  Cum.  Bull.  171. 

10922  T.C.  1134   (1954) ,  aff'd,  223  F.2d  526   (5th  Cir.  1955) . 

noAn  interesting  question  was  raised  by  the  taxpayer  as  to  whether  the  sale  or 
exchange  of  an  installment  obligation  under  an  installment  payment  arrangement  is 
itself  subject  to  the  installment  election.  The  court  found  it  unnecessary  to  decide  the 
question  since  it  held  the  disposition  in  the  instant  case  to  be  by  payment  or 
novation  and  not  by  "sale  or  exchange." 

1H1955-1  Cum.  Bull.  331. 


446  MISSISSIPPI  LAW  JOURNAL  [vol!  44 

terms  as  the  land  contract  for  which  the  substitution  was  made,  resulted 
in  a  change  in  the  type  of  security  only  and  did  not  constitute  a  dis- 
position giving  rise  to  gain  or  loss.112  The  Tax  Court  spoke  once  again 
on  the  problem  in  John  L.  Cuniiingham113  when  it  held  that  no  disposi- 
tion resulted  when  the  purchaser  of  stock  in  a  concrete  products  corpora- 
tion later  sold  the  stock  to  a  corporation  which  assumed  the  install- 
ment obligations.  Moreover,  the  court  stated  that  neither  the  reduction 
of  the  principal  amount  of  installment  obligation  nor  the  waiver  of 
interest  thereon  connotes  a  disposition  of  the  obligation.  Thus,  in 
Cunningham  the  underlying  security  remained  unchanged  as  did  the 
security  in  the  revenue  ruling.  In  Revenue  Ruling  68-4 19114  the  service 
further  held  that  the  modification  of  the  terms  of  a  purchaser's  note 
to  defer  the  maturity  dates  and  even  increase  the  interest  rate  is  not 
tantamount  to  a  disposition  of  the  installment  obligation  under  sec- 
tion 453(d). 

Whether  the  dictum  of  Burrell  Groves  remains  viable  in  the  wake 
of  Cunningham  and  the  service  rulings  is  open  to  question.  If  an  install- 
ment seller  agrees  to  a  subordination  of  his  purchase-money  security  to 
enable  the  purchaser  to  secure  financing  for  development  upon  the  real 
estate  subject  to  the  installment  sale,  Revenue  Ruling  55-5  would  seem  to 
sanction  such  substitution  of  security  through  the  same  obligor  while 
preserving  the  seller's  installment  election.  Moreover,  Burrell  Groves 
involved  the  substitution  of  the  installment  obligation  in  addition  to 
the  collateral  securing  the  debt  and  even  further,  the  cancellation  of  the 
obligation  of  the  original  purchaser.  It  can  hardly  be  argued  that  the 
mere  substitution  of  the  collateral  securing  the  installment  obligation 
undermines  the  integrity  of  the  installment  sales  provisions.  The  install- 
ment seller's  economic  gain  will  continue  to  be  realized  over  future 
payments  received  from  the  original  obligor— an  arrangement  which 
clearly  would  have  been  eligible  for  installment  reporting  from  the  in- 
ception of  the  sale. 

C.  Transmission  of  Installment  Obligations  at  Death 

Section  453  (d)  specifically  provides  that  the  transmission  of  an  in- 
stallment obligation  upon  the  death  of  the  owner  of  such  obligation 
shall  not  be  deemed  a  disposition  subject  to  the  rules  of  gain  or  loss 
previously  discussed.115  Upon  the  death  of  the  owner  of  an  installment 

H25ee  also  Rev.  Rul.  68-246,  1968-1   Cum.  Bull.   198,    (substitution  of  an  escrow 
deposit  for  a  deed  of  trust  is  not  a  "disposition") . 

H344  T.C.  103   (1965),  acquiesced  in,  1966-2  Cum.  Bull.  4. 

"41968-2  Cum.  Bull.  196. 

ii5Int.  Rev.  Code  of  1954,  §  453  (d)  (3) . 


1973]  COMMENTS  447 

obligation,  the  right  to  receive  future  payments  will  pass  to  the  dece- 
dent's estate  and  is  subject  to  the  rules  governing  income  with  respect 
to  a  decedent.116  Any  payments  made  to  the  decedent's  estate  during  the 
period  of  administration  will  result  in  recognizable  income  to  the  estate 
in  the  same  amount  and  character  as  would  have  been  reported  by  the 
decedent  had  he  lived.117  If  the  installment  obligation  is  not  collected 
during  the  period  of  administration,  any  subsequent  disposition  by  sale 
or  exchange  through  the  estate,  including  distributions  in  satisfaction  of 
a  pecuniary  bequest,  will  result  in  taxable  income  to  the  estate  to  the 
extent  that  the  greater  of  the  amount  of  consideration  received  or  fair 
market  value  of  the  obligation  exceeds  the  basis  of  the  obligation,118 
with  the  character  again  determined  by  reference  to  the  decedent.119  A 
disposition  of  the  installment  obligation  by  the  estate  in  satisfaction  of 
a  specific  or  residuary  bequest  or  according  to  local  laws  of  descent  and 
distribution,  however,  will  not  result  in  taxable  income  to  the  estate.120 
Instead,  the  recipient  of  the  obligation,  with  the  exception  of  a  distri- 
butee in  satisfaction  of  a  pecuniary  bequest,  will  continue  to  report  in- 
come in  the  same  amount  and  character  as  would  have  been  reported  by 
the  decedent.121  Any  subsequent  sale  or  disposition  by  such  beneficiary 
will  result  in  taxable  gain  to  the  extent  that  the  greater  of  the  amount 
of  consideration  received  or  fair  market  value  of  the  obligation  exceeds 
the  basis  of  the  obligation.122  Of  paramount  importance  is  the  fact  that 
the  distributee  of  an  installment  obligation  under  section  691  is  not 
afforded  the  benefit  of  a  stepped-up  basis123  with  respect  to  the  obliga- 
tion, but  is  allowed  an  income  tax  deduction  for  estate  taxes  attributable 
to  the  inclusion  of  the  installment  obligation  in  the  decedent's  gross 
estate.124 

D.  Default  and  Repossession 

Prior  to  1964,  any  repossession  of  real  property  by  a  vendor  who 
had  elected  the  installment  method  was  regarded  as  a  disposition  of  the 
installment  obligation  and  the  ensuing  gain  or  loss  was  recognized  ac- 
cordingly.125 Frequently,  the  recognition  of  gain  upon  repossession  by 

iis/d.  §  691. 

ii7Se<?  id.  §§  691  (a)  (3) ,   (4)  (B) . 

iis/d.  §§  691  (a)  (2) ,  (4)  (B) . 

ii9/d.  §  691  (a)  (3) . 

i2oid.  §  691  (a)  (2)  . 

121/d.  §§  691(a)  (3),   (4)(B). 

122/d.  §§  691  (a)  (2) ,   (4)  (B) . 

izssee  id.  §§  1014(b)  (9),   (c) . 

124/d.  §  691  (c). 

wsee,  e.g.,  Lucille  L.  Morrison,  12  T.C.  1178    (1949). 


448  MISSISSIPPI  LAW  JOURNAL  [vol.44 

the  installment  vendor  would  create  an  immediate  tax  liability  in  excess 
of  the  vendor's  current  liquidity— a  situation  similarly  encountered  by 
the  vendor  had  the  installment  method  been  unavailable  in  the  year  of 
sale. 

With  the  enactment  of  section  1038  the  former  rules  for  repossession 
were  relaxed  so  that  any  gain  or  loss  realized  upon  repossession  will  be 
recognized  only  to  a  limited  extent.126  In  order  to  qualify  for  non- 
recognition  treatment  under  section  1038,  the  seller  must  reacquire  the 
real  property  in  partial  or  full  satisfaction  of  the  indebtedness  which 
such  property  secures,127  and  the  indebtedness  must  have  arisen  from  the 
sale  of  the  property  by  the  seller.128  For  the  purpose  of  section  1038  a 
repossession  includes  voluntary  conveyance  from  the  purchaser,  abandon- 
ment, strict  foreclosure,129  foreclosure  by  entry  and  possession,130  fore- 
closure by  writ  of  entry,131  or  by  publication  or  notice,132  and  foreclosure 
by  judicial  sale  or  power  of  sale  in  which  a  competitive  bid  is  entered.133 
Furthermore,  a  sale  for  the  purpose  of  section  1038  includes  contract 
sales  in  which  title  or  possession  will  not  pass  to  the  purchaser  until  he 
partially  or  fully  satisfies  his  contractual  obligations.134  Section  1038  will 
not  apply  to  a  reacquisition  in  which  the  seller  pays  consideration  in 
addition  to  discharging  the  purchaser's  indebtedness,  unless  the  original 
sales  contract  so  provided  or  unless  default  has  occurred  or  was  immi- 
nent.135 

Obviously,  section  1038  will  not  apply  to  the  usual  situation  where 
the  installment  seller  receives,  as  satisfaction  for  the  buyer's  installment 
obligation,  the  proceeds  from  a  judicial  sale  of  the  property  or  sale  pur- 
suant to  a  deed  of  trust.  In  such  case  there  would  clearly  be  a  disposition 
of  the  vendee's  installment  obligation  in  accordance  with  section  453  (d) . 
Where  there  is  a  repossession  or  reacquisition  of  the  property  subject 
to  the  installment  sale,  however,  the  general  rule  is  that  the  gain  result- 

i26iNT.  Rev.  Code  of  1954,  §  1038  . 

127/d.  §  1038  (a)  (2) . 

128/d.  §  1038  (a)  (1) .  For  the  effect  of  repossession  of  real  property,  the  sale  of 
which  resulted  in  non-recognition  gain  under  section  1034,  see  id.  §  1038  (e) . 

i29in  a  majority  of  jursidictions  strict  foreclosure  of  a  mortgagor's  interest  by  a 
morgagee  is  not  permitted.  See  generally  G.  Osborne,  Handbook  on  the  Law  of 
Mortgages  §§311-12  (2d  ed.  1970) . 

isoSuch  foreclosure  exists  in  four  New  England  states:  Massachusetts,  Maine,  New 
Hampshire,  and  Rhode  Island.  Id.  §  314. 

i32Strict  foreclosure  may  be  accomplished  in  Maine  by  advertisement  of  default 
and  intention  to  foreclose  after  one  year.  Id.  §  315. 
isaTreas.  Reg.  §  1.1038-1  (a)  (3)  (ii)     (1967). 
i34/d.  §  1.1038-1  (a)  (2)  (i) . 
i35/d.  §  1.1038-1  (a)  (3)  (i) . 


1973]  COMMENTS  449 

ing  from  the  repossession  is  the  amount  by  which  the  money  and  fair 
market  value  of  property  the  seller  receives  prior  to  repossession  (exclud- 
ing obligations  of  the  buyer)  exceeds  the  gain  previously  reported  as 
income.136  The  taxable  gain  is  nevertheless  limited  to  the  amount  by 
which  the  original  sales  price  exceeds  the  adjusted  basis  of  the  property, 
reduced  by  the  sum  of  the  gain  previously  reported  and  the  amount 
transferred  by  the  seller  in  connection  with  the  repossession.137  The  origi- 
nal sales  price  of  the  property  is  the  gross  sale  price  less  selling  commis- 
sions, legal  fees,  unstated  interest,  and  other  related  selling  expenses.138 
Also,  any  stated  or  unstated  interest  received  by  the  seller  prior  to  re- 
possession is  not  included  in  the  gain  previously  returned  as  income.139 
The  basis  of  the  repossessed  property  is  defined  as  the  seller's  adjusted 
basis  of  the  purchaser's  indebtedness  on  the  date  of  repossession  but  in- 
creased by  the  gain  recognized  and  the  seller's  repossession  costs.140 

For  example,  assume  that  a  calendar  year  taxpayer  sells  real  prop- 
erty on  January  1,  1970,  for  $25,000,  payable  as  follows:  $5,000  down  and 
$20,000  in  6  percent  notes,  secured  by  a  deed  of  trust,  payable  in  $4,000 
annual  installments  beginning  January  1,  1971.  The  property  has  a  basis 
of  $20,000  to  the  seller.  The  seller  elects  section  453  (b) ,  and  his  gross 
profit  percentage  is  20  percent  ($5,000  profit  -f-  $25,000  selling  price) . 
In  1970  the  seller  reports  $1,000  as  income,  and  in  1971  he  reports  $800. 
The  buyer  defaults  in  1972,  and  the  seller  repossesses  the  property  at  a 
cost  of  $500.  The  taxable  gain  upon  repossession  is  $2,700,  computed 
as  follows: 

Amount  of  money  previously  received  $  9,000 

Less:  Gain  previously  reported  1,800 

Gain  without  limitation  $  7,200 

Limitation: 


Original  sale  price  $25,000 

Less:  basis  20,000 


5,000 


Reduced  by: 

previous  gain  1,800 

repossession  costs  500  2,300 

Taxable  Gain  on  Repossession  $  2,700 

i36iNT.  Rev.  Code  of  1954,  §  1038  (b)  (1). 

137/J.  §  1038  (b)  (2)  .  Amount  of  money  paid  or  transferred  by  the  seller  include: 
court  costs;  fees  for  attorneys,  masters,  trustees,  and  auctioneers;  fees  for  publication; 
fees  for  acquiring  title,  clearing  liens,  or  filing  and  recording.  Treas.  Reg.  §  1.1038-1 
(c)  (4)  (i)    (1967) . 

i38Treas.  Reg.  §  1.1038-1  (c)  (3)    (1967) . 

i39/d.  §  1.1038-1  (b)  (2)  (iii) . 

i40Int.  Rev.  Code  of  1954,  §  1038  (c)  . 


450                             MISSISSIPPI  LAW  JOURNAL  [vol.  44 

The  new  basis  in  the  repossessed  property  is  $16,000,  computed  as  follows: 

Face  value  of  purchaser's  note  $16,000 

Less:  unreported  profit  3,200 

Adjusted  basis  of  purchaser's  note  12,800 
Plus: 

Gain  on  repossession  2,700 

Cost  of  repossession                                    500  3,200 

Basis  of  Repossessed  Property  $16,000 


In  the  case  of  a  dealer  who  repossesses  real  property  sold  on  the  install- 
ment method,  the  dealer  is  not  allowed  to  claim  any  worthless  or  par- 
tially worthless  bad  debt  with  respect  to  the  indebtedness  satisfied.141 
Any  amount  previously  treated  as  a  bad  debt  deduction  must  be  treated 
upon  repossession  as  a  recovery  of  such  debt  and  such  amount  must  be 
added  to  the  basis  of  the  installment  obligation.142 

V.     Conclusion 

The  installment  sales  provision  of  the  Internal  Revenue  Code  af- 
fords the  vendor  of  real  property  an  attractive  alternative  to  the  usual 
method  of  reporting  gain  in  the  year  of  sale.  It  is  incumbent  upon  the 
practitioner  to  be  cognizant  of  the  requirements  of  section  453  (b) ,  since 
it  is  more  often  the  attorney,  rather  than  the  accountant,  who  is  involved 
in  the  actual  consummation  of  the  real  property  sale.  Any  subsequent 
attempt  to  qualify  a  defective  sale  for  installment  reporting  may  be  of 
no  avail,  particularly  if  the  vendor  fails  to  discover  the  qualification 
problem  until  after  the  close  of  his  taxable  year.  It  is  apparent  that  the 
presence  of  competent  tax  advice  at  the  time  of  sale  is  essential  for  the 
ultimate  qualification  of  the  transaction  for  the  installment  method  of 
reporting. 

Advantages  of  installment  reporting,  in  addition  to  the  deferred  tax 
treatment,  should  be  carefully  examined  and  weighed  against  potential 
pitfalls  resulting  from  the  election  of  section  453  (b) .  For  example,  in 
the  case  of  taxable  years  for  individuals  beginning  in  1972,  long  term 
capital  gains  will  be  subjected  to  a  maximum  tax  rate  of  35  percent  as 
the  maximum  alternative  tax  on  capital  gains  is  phased  out.143  Neverthe- 

i«/d.  §  1038  (a) . 

"2/d.  §  1038  (d)  . 

i435ee  id.  §§  1201  (b) ,  (c).  The  35  percent  rate  results  from  the  combined  effect 
of  the  50  percent  capital  gain  deduction  under  section  1202  and  the  70  percent 
maximum  rate  on  an  individual's  ordinary  income. 


1973]  COMMENTS  451 

less,  the  first  $50,000  of  long  term  capital  gain  is  subject  to  a  maximum 
tax  rate  of  25  percent.144  Consequently,  a  judicious  structuring  of  install- 
ment payments  may  result  in  capital  gains  being  taxed  at  the  lower  tax 
rate.  Moreover,  since  the  portion  of  long  term  capital  gains  that  escapes 
taxation  under  section  1202  is  regarded  as  a  tax  preference  item  to  the 
extent  such  amount  exceeds  $30,000,145  the  spreading  of  any  such  gain 
over  future  years  may  reduce  the  amount  below  $30,000  for  any  taxable 
year  and  thus  avoid  the  additional  10  percent  tax  imposed  on  items  of 
tax  preference. 

The  spreading  forward  of  capital  gains  may  also  prove  beneficial  to 
corporations  in  that  such  gains  may  be  utilized  to  offset  future  unusable 
capital  losses  subject  to  the  5-year  maximum  carryover  of  section  1212. 
Against  these  advantages  must  be  weighed  the  possibility  that  the  seller 
may  wish  to  apply  the  entire  gain  to  a  net  operating  loss146  or  capital 
loss  carryover  that  is  about  to  expire.  Furthermore,  the  capital  gains 
provisions  are  subject  to  change  and  revision  by  Congress  —  a  change 
which  might  convert  future  installment  receipts  into  ordinary  income.147 
In  addition  to  the  above  tax  ramifications  surrounding  the  installment 
election,  the  vendor  seeking  to  utilize  section  453  (b)  must  evaluate  the 
financial  reliability  of  the  purchaser,  the  business  risk  of  deferring  gain 
until  future  years,  the  diluting  effect  of  creeping  inflation  upon  fixed 
payments,  and  the  possibility  of  higher  tax  rates  in  the  years  in  which 
installment  payments  are  to  be  received. 

Ellis  Glenn  Koury 

mid.  §  1201. 

i^see  id.  §§  56,  57  (a)  (9) . 

146/rf.  §   172. 

wSee,  e.g.,  Snell  v.  Commissioner,  97  F.2d  891    (5th  Cir.  1938) ,  where  it  was  held 
that  the  law  in  force  during  the  year  of  receipt,  not  the  year  of  sale,  applies. 


452  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

ASSUMPTION  OF  RISK  IN  MISSISSIPPI  -  TIME  FOR  A  CHANGE? 

Volenti  Non  Fit  Injuria 

The  often-quoted  "volenti"  maxim,  which  means  "He  who  consents 
cannot  receive  an  injury,"1  along  with  its  counterpart,  "assumption  of 
risk,"  has  been  a  subject  of  frequent  discussion  among  legal  writers.2 
Although  both  phrases  have  been  applied  when  discussing  Mississippi 
law,3  the  Mississippi  Supreme  Court  has  never  attempted  to  distinguish 
the  expressions  and  usually  speaks  in  terms  of  assumption  of  risk.4 

The  general  principle  of  the  assumption  of  risk  doctrine  is  stated  in 
the  Restatement  of  Torts  as  follows:  "A  plaintiff  who  voluntarily  assumes 
a  risk  of  harm  arising  from  the  negligent  or  reckless  conduct  of  the  de- 
fendant cannot  recover  for  such  harm."5  Moreover,  a  plaintiff  who  has 
assumed  a  risk  is  completely  barred  from  recovery.  Thus,  application  of 
the  doctrine  may  lead  to  harsh  results. 

It  is  possible  to  classify  the  doctrine  into  three  basic  situations:6  In  a 
primary  sense,  the  plaintiff  gives  in  advance  his  consent  to  relieve  the 
defendant  from  a  duty  owed  to  the  plaintiff.  For  example,  assume  B 
wants  to  ride  A's  horse.  A  tells  B  that  if  B  wants  to  ride  the  horse,  he 
must  assume  the  risks  because  the  horse  is  wild  and  dangerous.  If  B  then 
rides  the  horse,  he  has  expressly  assumed  the  risk.7  In  a  second  situation, 
the  plaintiff  voluntarily  enters  into  a  relation  with  the  defendant,  and 
the  plaintiff  knows  he  will  not  be  protected  from  a  danger.  For  example, 
B  might  get  on  A's  horse,  which  immediately  starts  bucking.  If  B  con- 
tinues to  ride,  he  has  impliedly  assumed  the  risk.  A  third  situation  arises 


iBlack's  Law  Dictionary  1746    (Rev.  4th  ed.  1968)  . 

zSee  W.  Prosser,  Handbook  of  the  Law  of  Torts  §  68,  at  439  n.10  (4th  ed.  1971) 
[hereinafter  cited  as  Prosser]. 

3£.g.,  Pierson  v.  Ray,  352  F.2d  213,  220  (5th  Cir.  1965) ,  aff'd  in  part,  rev'd  in 
part,  386  U.S.  547  (1967),  which  states  that  "[throughout  the  common  law  of  torts 
the  maxim,  volenti  non  fit  injuria,  is  applicable."  Wright  v.  Standard  Oil  Co.,  319 
F.  Supp.  1364,  1372  (N.D.  Miss.  1970) ,  which  states  that  "[assumption  of  risk  as  a 
complete  defense  is  a  viable  doctrine  in  Mississippi.  .  .  ." 

*See,  e.g.,  Mississippi  Export  R.R.  v.  Temple,  257  So.  2d  187  (Miss.  1972) ;  Saxton 
v.  Rose,  201  Miss.  814,  29  So.  2d  646  (1947) ;  McDonald  v.  Wilmut  Gas  &  Oil  Co., 
180  Miss.  350,  176  So.  395   (1937) . 

^Restatement  (Second)   of  Torts  §  496  A  (1965) . 

eThese  classifications  are  basically  derived  from  Prosser  §  68,  at  440. 

?Thus  express  consent  is  acknowledged  in  a  specific  agreement  between  the  parties. 
Generally  speaking,  there  is  no  legal  prohibition  against  these  types  of  agreements. 
Nevertheless,  some  agreements  have  been  held  invalid  as  against  public  policy.  James, 
Assumption  of  Risk,  61  Yale  LJ.  141,  163   (1952)  . 


1973]  COMMENTS  453 

when  the  plaintiff  is  aware  of  a  risk  previously  created  by  the  defendant's 
negligence,  yet  he  voluntarily  chooses  to  encounter  it.  For  example,  B 
knows  that  the  saddle  A  loans  him  is  defective,  but  he  uses  it  anyway. 
B  has  again  assumed  the  risk.  It  is  the  second  and  third  situations  which 
create  the  most  problems,  for  the  plaintiff's  conduct  in  encountering  a 
known  risk  may  be  in  itself  unreasonable.  If  so,  his  conduct  would  con- 
stitute a  form  of  contributory  negligence  rather  than  assumption  of  risk.8 

This  comment  will  (1)  discuss  the  fundamental  aspects  of  the  as- 
sumption of  risk  doctrine;  (2)  compare  the  doctrine  to  the  similar  doc- 
trine of  contributory  negligence;  and  (3)  formulate  conclusions  about 
the  current  desirability  of  the  doctrine. 


I.     Fundamental  Aspects  of  the  Assumption  of  Risk  Doctrine 

A.     Brief  History 

The  assumption  of  risk  doctrine  emerged  from  its  English  embryo 
during  the  early  19th  century.  The  leading  English  case,  Priestly  v. 
Fowler?  was  decided  in  1837.  Although  it  did  not  specifically  label 
assumption  of  risk  as  a  doctrine,  the  Priestly  court  did  state  that  an 
employee  must  assume  certain  risks  during  the  course  of  his  employ- 
ment.10 The  doctrine  subsequently  migrated  to  the  United  States  in 
1841,  when  the  case  of  Murray  v.  S.C.R.R.11  was  decided.  Since  then,  this 
common  law  doctrine  has  blossomed  into  a  well-recognized  defense  in 
many  states.12  Mississippi  adopted  the  doctrine  in  1873  with  the  case  of 
N.O.J.&G.N.R.R.  v.  Hughes,13  which  involved  a  suit  by  a  railroad  em- 
ployee who  was  injured  when  his  train  derailed.  In  denying  his  claim, 
the  court  stated  that  he  had  assumed  the  "natural  and  ordinary  perils 
incident  to  the  service."14  Today  the  doctrine  continues  to  be  a  viable 
part  of  Mississippi  jurisprudence.15 

sProsser  §  68,  at  441. 

9150  Eng.  Rep.  1030  (Ex.  1837) . 

io[T]he  mere  relation  of  the  master  and  servant  can  never  imply  an  obligation 

on  the  part  of  the  master  to  take  more  care  of  the  servant  than  he  may 

reasonably  be  expected  to  do  of  himself  ....  The  servant  is  not  bound  to 

risk  his  safety  in  the  service  of  his  master,  and  may,  if  he  thinks  fit,  decline 

any  service  in  which  he  reasonably  apprehends  injury  to  himself.  .  .  . 

Id.  at  1032-33. 

ii36  Am.  Dec.  268   (S.C.  1841) . 

i2Some  form  of  the  doctrine  is  recognized  in  almost  every  state.  For  the  current 

status  of  the  doctrine  in  the  different  states,  see  note  134  infra. 
1349  Miss.  258  (1873)  . 
i4/d.  at  282. 
isSee,  e.g.,  Wright  v.  Standard  Oil  Co.,  319  F.  Supp.  1364,  1372  (N.D.  Miss.  1970) . 


454  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Originally,  the  assumption  of  risk  doctrine  was  created  to  protect 
industry  from  the  claims  of  its  employees.  The  United  States  Supreme 
Court  very  aptly  described  the  inceptive  purpose  as  follows: 

Assumption  of  risk  is  a  judicially  created  rule  which  was  devel- 
oped in  response  to  the  general  impulse  of  the  common  law 
courts  at  the  beginning  of  this  period  to  insulate  the  employer 
as  much  as  possible  from  bearing  the  "human  overhead"  which 
is  an  inevitable  part  of  the  cost-to  someone-of  the  doing  of  in- 
dustrialized business.  The  general  purpose  behind  this  develop- 
ment in  the  common  law  seems  to  have  been  to  give  maximum 
freedom  to  expanding  industry.16 

Thus,  the  doctrine  thrived  on  the  rationale  that  the  employee  would  be 
compensated  for  his  risk  and  that  he  could  always  resign  if  he  chose  not 
to  accept  the  risk.17  Although  the  doctrine  was  originally  limited  to  the 
employer-employee  relationship,  it  has  proliferated  in  other  areas  such 
as  automobile  accidents,18  products  liability,19  and  property  ownership 
cases.20 

B.     Nesessary  Elements 

Assumption  of  risk  may  be  either  expressed  or  implied.  Before  the 
doctrine  may  be  applied,  however,  certain  elements  must  be  present. 
Basically,  the  plaintiff  must  have  "actual"  knowledge  of  the  risk,21  and 
voluntarily  and  deliberately  expose  himself  to  the  risk.22 

isTiller  v.  Atlantic  Coast  Line  R.R.,  318  U.S.  54,  58-59  (1943) .  The  Mississippi 
Supreme  Court  has  expressed  a  similar  view: 

The  general  principle  which  prevails  in  England,  and  in  most  of  the  American 

States,  is,  that  a  servant  accepting  employment  for  the  performance  of  specified 

dudes  takes  upon   himself  the   natural   and  ordinary   perils  incident   to   the 

service,  of  which,  are  exposures  from  negligence  of  fellow-servants  in  the  same 

common  employment. 
N.O.J.&G.N.R.R.  v.  Hughes,  49  Miss.  258,  282  (1873)  . 

i~See  note  10  supra. 

isSee,  e.g.,  Robbins  v.  Milner  Enterprises,  Inc.,  278  F.2d  492  (5th  Cir.  1960) 
(defective  brakes)  ;  Saxton  v.  Rose,  201  Miss.  814,  29  So.  2d  646  (1947)  (intoxicated 
driver). 

wSee,  e.g.,  Ward  v.  Hobart  Mfg.  Co.,  317  F.  Supp.  841  (S.D.  Miss.  1970)  ,  reu'd, 
450  F.2d  1176  (5th  Cir.  1971)  (meat  grinder);  Harrist  v.  Spencer-Harris  Tool  Co., 
244  Miss.  84,  140  So.  2d  558   (1962)     (oil  rig)  . 

^See,  e.g.,  Langford  v.  Mercurio,  254  Miss.  788.  183  So.  2d  150    (1966)  . 

2i£.g.,  White  v.  Mississippi  Power  &  Light  Co.,  196  So.  2d  343  (Miss.  1967)  ; 
Wallace  v.  J.C.  Penney  Co.,  236  Miss.  367,  109  So.  2d  876    (1959)  . 

-*E.g.,  Strand  Enterprises  Inc.,  v.  Turner,  223  Miss.  588,  78  So.  2d  769  (1955)  .  Al- 
though it  is  generally  recognized  that  only  the  two  requirements  are  necessary  {see 
Prosser  §  68,  at  447)  ,  Mississippi  has  sometimes  divided  the  doctrine  into  three  sepa- 
rate elements.  One  author  separated  the  essential  requirements  as  follows: 


1973]  COMMENTS  455 

I.     Knowledge  of  the  Risk 

The  plaintiff's  actual  knowledge  has  been  held  to  encompass  a  com- 
plete comprehension  and  appreciation  of  the  danger.23  Consequently,  if 
the  plaintiff  knows  of  a  danger,  yet  fails  fully  to  appreciate  the  extent 
thereof,  he  cannot  have  knowledge.  Thus,  if  a  driver  of  an  automobile 
knows  that  his  brakes  are  faulty,  yet  does  not  know  they  are  in  such  a 
condition  as  to  cause  an  accident,  he  does  not  have  knowledge.24  Pre- 
sumably, lack  of  capacity  would  prevent  a  plaintiff's  total  comprehen- 
sion of  the  risk  if  he  were  an  infant  or  a  person  of  unsound  mind.  The 
Mississippi  Supreme  Court  has  held,  however,  that  voluntary  intoxica- 
tion will  not  exempt  a  plaintiff  from  the  doctrine.25 

Since  actual  knowledge  is  necessary,  the  test  employed  to  determine 
this  must  be  a  subjective  one  of  the  plaintiff  himself,  rather  than  the 
objective  standard  of  the  reasonable  man  which  is  used  for  purposes  of 
determining  contributory  negligence.26  Thus,  it  is  not  sufficient  to  say 
that  the  plaintiff  "should  have  known"  about  the  danger.27  What  is  the 
effect,  then,  of  the  plaintiff's  denial  of  actual  knowledge?  In  these  situ- 
ations, the  Mississippi  Supreme  Court  has  indicated  that  the  circum- 
stances may  be  such  as  to  charge  the  plaintiff  with  actual  knowledge.28 
Furthermore,  a  plaintiff  may  not  overlook  obvious  dangers.29  Similarly, 
an  expert  may  be  charged  with  a  higher  degree  of  knowledge  of  a  dan- 

(i)   knowledge  on  the  part  the  of  the  injured  party  of  a  condition  inconsistent 
with  his  safety;    (2)    appreciation  by  the  injured  party  of  the  danger  in  the 
condition;  and    (3)    a  deliberate  and  voluntary  choice  on  the  part  of  the  in- 
jured  party   to   expose   his  person   to   that  danger  in  such  a  manner  as   to 
register  assent  on  the  continuance  of  the  dangerous  condition. 
19    Miss.    L.J.    369,    370     (1948)  .     The    Mississippi    Supreme    Court    quoted    these 
elements     with     approval     in     Elias     v.     New     Laurel     Radio     Station,     Inc.,     245 
Miss.    170,    179,    146   So.   2d    558,    561-62     (1962)  .     Nevertheless,    "knowledge"    of   the 
danger    usually    incorporates    "appreciation"   of    the    risk,    so    that    the    two    may    be 
combined  into  one  element. 
'^See  note  22  supra. 

ziSee  Robbins  v.  Milner  Enterprises,  Inc.,  278  F.2d  492   (5th  Cir.  1960).  The  court 
went  so  far  as  to  say  the  driver  must  have  knowledge  that  "the  brakes  were  serious- 
ly defective  presenting  immediate,  obvious  dangers."  Id.  at  496. 
25Saxton  v.  Rose,  201  Miss.  814,  29  So.  2d  646    (1947) . 

26£.gv  Herod  v.  Grant,  262  So.  2d  781    (Miss.  1972) ;  Griffin  v.  Holliday,  233  So. 
2d  820    (Miss.  1970);  Daves  v.  Reed,  222  So.  2d  411    (Miss.  1969). 

27£.gv  Fisher  v.  United  States  Steel  Corp.,  334  F.2d  904  (5th  Cir.  1964)  . 
2&See  United  Roofing  &  Siding  Co.  v.  Seefeld,  222  So.  2d  406  (Miss.  1969).  In 
this  case  a  plumber  who  was  working  in  the  area  of  a  construction  project  stepped 
on  a  nail  and  injured  his  foot.  The  plumber  testified  that  he  had  not  seen  the 
nail,  but  the  court  held  he  assumed  the  risk  because  he  knew  carpenters  had  been 
working  in   the  area. 

29Harrist  v.  Spencer-Harris  Tool  Co.,  244  Miss.  84,  140  So.  2d  558    CI 962)  . 


456  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

gerous  instrumentality  than  an  ordinary  layman.30  Therefore,  the  Mis- 
sissippi Supreme  Court  has  stated  that  if  the  danger  is  obvious  or  the 
facts  are  such  that  the  plaintiff  "must  have  had  knowledge"  of  the  risk, 
then  the  situation  is  "equivalent  to  actual  knowledge."31  Unfortunately, 
this  "must  have  had  knowledge"  test  appears  to  be  an  unhappy  com- 
promise between  the  subjective  and  objective  tests  and  certainly  necessi- 
tates a  delicate  distinction. 

Although  a  plaintiff  may  have  knowledge  of  a  particular  risk,  his 
knowledge  does  not  extend  to  a  new,  unknown  element  which  changes 
the  situation.32  For  example,  if  a  house  mover  is  told  that  an  overhead 
power  line  is  harmless,  he  does  not  assume  the  risk  if  the  line  is  later 
found  to  be  dangerous.33 

In  a  limited  number  of  situations,  it  is  possible  for  the  plaintiff  to 
consent  to  the  risk  without  ever  having  actual  knowledge  of  the  risk. 
For  example,  a  trespasser  or  licensee  assumes  all  risks  (known  or  un- 
known) when  he  enters  the  land  of  another,  since  the  owner  is  under  no 
obligation  to  him  other  than  refraining  from  wilful  or  wanton  injury.31 
Thus,  it  is  not  necessary  for  the  plaintiff  to  actually  consent  to  the  danger. 

2.     Voluntary  Assumption 

The  second  requirement  for  the  application  of  the  doctrine  is  that 
the  plaintiff  must  voluntarily  and  deliberately  encounter  the  risk.  The 
plaintiff  must  exhibit  a  "manifestation  of  consent."35  It  should  be  noted, 
however,  that  walking  into  a  known  danger  cannot  always  be  deemed  a 
consent.  Thus,  when  a  boy  runs  into  a  busy  street,  he  is  not  consenting 
to  be  run  down.36  Yet  once  a  party  has  voluntarily  placed  himself  in  a 
risky  position,  he  appreciates  that  chance  of  injury  so  long  as  the  dan- 
gerous condition  continues.37  Furthermore,  if  a  party  has  voluntarily 
exposed  himself  to  a  risk,  he  is  totally  barred  from  recovery,  even  though 

aoThus  an  electrician  may  be  held  to  have  assumed  the  risks  of  electrocution  when 
he  works  on  power  lines.  Jackson  Ready-Mix  Concrete  v.  Sexton,  235  So.  2d  267  (Miss. 
1970) ,  cert,  denied,  400  U.S.  916    (1970). 

siHerod  v.  Grant,  262  So.  2d  781,  783    (Miss.   1972) . 

32Crouch  v.  Mississippi  Power  &  Light  Co.,  193  So.  2d  144  (Miss.  1966) .  "[T]he 
fact  that  the  plaintiff  is  fully  aware  of  one  risk  does  not  mean  that  he  assumes 
another  of  which  he  is  unaware."  Id.  at  148. 

33/d. 

S4E.g.,  Coleman  v.  Associated  Pipeline  Contractors,  Inc.,  444  F.2d  737  (5th  Cir. 
1971);  West  v.  Williams,  245  So.  2d  591    (Miss.   1971). 

35Prosser  §  68,  at  450. 

36/d.  According  to  the  late  Dean  Prosser,  this  is  a  problem  area  in  which  the  doc- 
trine is  sometimes  confused  with  the  contributory  negligence  doctrine. 

37Wallace  v.  J.  C.  Penney  Co.,  236  Miss.  367,  109  So.  2d  876   (1959) . 


1973]  COMMENTS  457 

he  may  have  used  the  utmost  care  thereafter.38  In  order  for  a  party's 
actions  to  be  considered  voluntary,  he  must  have  a  reasonable  alternative 
to  encountering  the  risk.39  The  plaintiff  must  be  reasonably  able  to  elect 
whether  or  not  he  shall  expose  himself  to  the  danger.  He  must  further 
have  a  reasonable  opportunity  to  withdraw  after  the  danger  is  realized. 
If  the  plaintiff  accepts  the  risk  because  there  is  no  reasonable  alternative 
available,  there  has  been  no  voluntary  assumption.4*  Similarly,  a  plain- 
tiff does  not  voluntarily  assume  a  risk  when  he  exercises  a  legal  right  or 
privilege  given  to  him.41 

Of  course,  for  a  defendant  to  plead  the  doctrine  successfully,  the 
plaintiff's  injury  must  have  resulted  from  the  risk  he  assumed.42  Further- 
more, the  application  of  the  doctrine  is  generally  a  jury  question.43 

C.     Master-Servant  Relationships 

The  importance  of  the  assumption  of  risk  doctrine  in  the  master- 
servant  area  has  diminished  considerably  since  the  advent  of  workmen's 
compensation  statutes.  Nevertheless,  the  doctrine  is  still  applicable  in 
certain  situations.  Therefore,  a  brief  look  at  the  development  of  the 
doctrine  in  this  area,  especially  the  statutory  development,  is  necessary 
to  appreciate  the  present  scope  of  its  application. 

1.     Common  Law  Background 

The  assumption  of  risk  doctrine  was  originally  created  at  common 
law  to  protect  industry  from  bearing  the  cost  of  "human  overhead."44 
The  risks  that  an  employee  might  incur  during  the  course  of  his  employ- 
ment can  be  divided  into  two  classes:  (1)  ordinary  risks  not  created  by 
the  master's  negligence,  and  (2)  extraordinary  risks  that  are  created  by 
the  master's  negligence.45  The  general  rule  was  that  the  servant  assumed 

ssElias  v.  New  Laurel  Radio  Station,  Inc.,  245  Miss.  170,  146  So.  2d  558   (1962)  . 

40RESTATEMENT    (SECOND)     OF  TORTS  §  496   E    (1965)  . 
41/d. 

42Petersen  v.  Klos,  426  F.2d  199   (5th  Cir.  1970) . 

43£.gv  Wright  v.  Standard  Oil  Co.,  319  F.  Supp.  1364   (N.D.  Miss.  1970);  Elias  v. 

New  Laurel  Radio  Station,  Inc.,  245  Miss.   170,  146  So.  2d  558    (1962) .  Indeed,  the 

court  has  held  it  to  be  a  jury  question  in  all  but  the  "clearest"  cases.  Daves  v.  Reed, 

222  So.  2d  411,  414  (Miss.  1969) . 
44 See  text  at  note  16  supra. 

45Yazoo  &  M.V.R.R.  v.  Dees,  121  Miss.  439,  83  So.  613  (1920) .  More  specifically: 
The  risks  which  a  servant  may  incur  in  any  employment  fall  naturally  into 
one  or  the  other  of  two  classes:  First,  the  ordinary  risks  of  the  service,  that 
is,  those  which  are  not  created  by  the  master's  negligence  and  which  remain 
after  he  has  used  due  care  to  remove  them;  and,  second,  the  extraordinary 
risks  or  those  which  are  created  by  the  master's  negligence. 

Id.  at  463,  83  So.  at  615. 


458  MISSISSIPPI  LA  W  JO URNAL  [vol.  44 

only  the  ordinary  risks  of  his  employment.46  Thus,  the  employee  assumed 
the  risks  of  the  tools  and  appliances  with  which  he  worked.47  As  always, 
however,  the  general  rule  was  not  consistently  applicable.  It  was  also 
held  that  the  servant  did  assume  the  risks  of  the  master's  negligence  if 
he  (1)  had  actual  knowledge  of  the  danger;  (2)  appreciated  the  danger; 
and  (3)  voluntarily  continued  his  employment. iS  Moreover,  it  was  gen- 
erally held  that  the  servant  assumed  the  risks  of  dangers  created  by  his 
fellow  servants.49  The  servant  did  not  assume  the  risks  of  his  fellow 
servants'  negligence,  however,  if  the  master's  negligence  was  primarily 
responsible  for  the  injury.  For  example,  the  servant  could  still  recover 
if:  (1)  the  master  did  not  use  ordinary  care  in  his  selection  of  the  other 
servants;  (2)  the  master  had  actual  notice  of  the  fellow  servant's  unfit- 
ness, but  continued  his  employment;  or  (3)  the  master  should  have 
known,  by  the  use  of  reasonable  diligence,  about  the  fellow  servant's 
unfitness.50 

2.     Statutory  Development 

Congress  modified  the  common  law  doctrine  in  1908  with  the  enact- 
ment of  the  Federal  Employer's  Liability  Act.51  Designed  to  protect 
employees  of  common  carriers,  this  statute  eliminated  the  fellow  servant 
rule  and  substituted  comparative  negligence  for  contributory  negligence, 
but  retained  the  doctrine  of  assumed  risk.52   In  effect,  then,  the  doctrine 


46Thus  the  servant  could  not  recover  if  injured  by  ordinary  dangers.  Id.  at  464,  83 
So.  at  615;  accord,  N.O.J.&G.N.R.R.  v.  Hughes,  49  Miss.  258    (1873)  : 

The  general  principle  which  prevails  in  England,  and  in  most  of  the  Ameri- 
can States,  is,  that  a  servant  accepting  employment  for   the  performance  of 
specified  duties  takes  upon  himself  the  natural   and  ordinary  perils  incident 
to  the  service  .... 
Id.  at  282. 

*7Howd  v.  Mississippi  Cent.  R.R.,  50  Miss.  178  (1874).  The  employee  assumed 
the  risk  of  both  ordinary  and  dangerous  instrumentalities.  It  was  the  duty  of  the 
master,  however,  to  use  reasonable  care  in  providing  safe  instrumentalities.  Thus  the 
servant  would  not  assume  the  risk  of  a  defective  instrument  negligently  provided  by 
the  master.  Id.  at  186. 

48Yazoo  &  M.V.R.R.  v.  Dees,   121   Miss.  439,  464,  83  So.  613,  615    (1920)  . 

49Howd  v.  Mississippi  Cent.  R.R.,  50  Miss.  178  (1874);  N.O.J.&G.N.R.R.  v.  Hughes, 
49  Miss.  258   (1873)  .  This  is  generally  known  as  the  "fellow  servant"  rule. 

soHowd  v.  Mississippi  Cent.  R.R.,  50  Miss.  178,  189  (1874);  accord  N.O.J.&G.N.R.R. 
v.  Hughes,  49  Miss.  258,  284  (1873). 

siAct  of  April  22,  1908,  ch.  149,  §  4,  35  Stat.  66. 

MSee  45  U.S.C.A.  §  54,  note  1  at  125  (1972);  Tiller  v.  Atlantic  Coast  line  R.R.. 
318  U.S.  54,  62   (1943)  . 


1973]  COMMENTS  459 

was  applied  as  at  common  law.83  In  1939,  however,  the  Federal  Em- 
ployer's Liability  Act  was  amended.54  After  the  amendment,  the  em- 
ployee was  held  not  to  assume  risks  of  employment  caused  by  the 
employer's  negligence,55  therefore  for  all  practical  purposes,  the  doctrine 
of  assumption  of  risk  was  abolished  in  cases  arising  under  the  Act.56 
The  Federal  Employer's  Liability  Act  governed  all  cases  falling  within  its 
provisions;  consequently  it  superseded  state  law,  including  both  statutory 
and  common  law.57  Presumably,  in  cases  unaffected  by  workmen's  com- 
pensation statutes,  the  Act  is  still  valid. 

Mississippi's  initial  modification  of  the  doctrine  appeared  in  the 
Constitution  of  1890.  This  provision,  which  affected  only  railroad  cor- 
porations and  employees,  provided  generally  that  an  employee's  knowl- 
edge of  unsafe  machinery  defects  would  not  bar  him  from  recovery  in  a 
negligence  suit.58  In  1914,  the  assumption  of  risk  doctrine  was  generally 
abolished  by  statute  in  all  cases  which  resulted  from  an  employer's  negli- 
gence.59  The  statute  specifically  provided: 

[I]n  all  actions  for  personal  injury  to  an  employee,  and  in  all 
actions  where  such  injury  results  in  death,  such  employee  shall 
not  be  held  to  have  assumed  the  risk  of  his  employment  in  any 
case  where  such  injury  or  death  results  in  whole  or  in  part  from 
the  negligence  of  the  master.  .  .  .60 

Thus,  the  statute  extended  protection  to  all  employees,  not  just  railroad 
employees.  This  law  was  embodied  in  the  1917  Hemingway's  Code,61 
and  remains  unchanged  in  the  current  Code.62 

Although  the  Mississippi  Supreme  Court  has  stated  that  "the  doc- 
trine of  assumption  of  the  risk  is  not  in  force  as  between  a  master  and 

ssNew  Orleans  Great  N.R.R.  v.  Branton,  167  Miss.  52,  146  So.  870  (1933)  ,  cert, 
denied,  290  U.S.  667  (1933)  .  See  Illinois  Cent.  R.R.  v.  Humphries,  1/0  Miss.  840,  155 
So.  421    (1934)  ;  Louisville  &  N.R.R.  v.  Russell,  164  Miss.  529,  144  So.  478    (1932)  . 

54Act  of  August  11,  1939,  ch.  685,  §  1,  53  Stat.  1404. 

5545  U.S.C.  §  54    (1970). 

soTiller  v.  Atlantic  Coast  Line  R.R.,  318  U.S.  54,  64  (1943),  declared:  "The  re- 
sult is  an  Act  which  requires  cases  tried  under  the  Federal  Act  to  be  handled  as 
though  no  doctrine  of  assumption  of  risk  ever  existed." 

5756  C.J.S.  Master  and  Servant  §  359    (1948) . 

58Miss.  Const,  art.  7,  §  193. 

59Act  of  Feb.  28,  1914,  ch.  156,  §  1,  [1914]  Gen.  Laws  Miss.  200. 

eo/d.  Presumably,  the  reasoning  behind  this  modification  was  that  the  employee 
does  not  really  have  a  choice  as  to  whether  he  wants  to  assume  the  risk.  In  other 
words,  the  choice  between  doing  hazardous  work  or  quitting  one's  job  is  no  choice 
at  all,  for  in  most  instances,  the  employee  has  to  work  in  order  to  live.  Furthermore, 
finding  a  new  job  may  prove  to  be  a  difficult  task. 

eiMiss.  Ann.  Code  §  504  (Hemingway  1917) . 

62Miss.  Code  Ann.  §  1456    (1956) . 


460  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

servant,"63  a  more  correct  statement  would  be  that  the  doctrine  is  not  in 
force  as  between  master  and  servant  when  the  injury  results  from  the 
master's  negligence**  Consequently,  an  employee  still  assumes  ordinary 
risks  not  caused  by  the  employer's  negligence.65  It  should  be  remem- 
bered that  the  doctrine  applies  only  in  cases  not  covered  by  workmen's 
compensation. 

3.     Workmen's  Compensation 

As  a  practical  matter,  Mississippi's  workmen's  compensation  laws 
have  almost  eliminated  the  problem  of  assumption  of  risk  in  master- 
servant  cases.  The  statute  provides  that  in  the  event  of  an  injury  to  an 
employee,  compensation  is  payable  to  him  without  regard  to  fault.66 
The  statute  further  designates  the  class  of  employers  who  must  comply 
with  the  statute.67  Another  section  provides  for  the  liability  of  a  quali- 
fied employer  to  pay  compensation  under  the  Workmen's  Compensation 
Act  exclusive  of  all  other  liability.68  Moreover,  if  the  employment  is 
covered  under  the  Act,  the  employee's  exclusive  remedy  is  under  the  Act, 
and  a  suit  at  common  law  will  be  dismissed.69   The  purpose  of  the  wrork- 


63Smith  v.  Jones,  220  So.  2d  829,  833  (Miss.  1969) ;  accord,  Saxton  v.  Rose,  201 
Miss.  814,  29  So.  2d  646  (1947)  ;  McDonald  v.  Wilmut  Gas  &  Oil  Co.,  180  Miss.  350, 
176  So.  395   (1937) . 

64Miss.  Code  Ann.  §  1456   (1956) . 

esHolliday  v.  Fulton  Band  Mill,  Inc.,  142  F.2d  1006  (5th  Cir.  1944);  Goff  v. 
Randall,  206  Miss.  178,  39  So.  2d  881  (1949)  ("A  workman  assumes  the  usual 
and  ordinary  risks  incident  to  his  employment,  after  the  master  has  exercised  reason- 
able care  to  furnish  reasonably  safe  methods  and  appliances  for  doing  the  work." 
206  Miss,  at  188,  39  So.  2d  at  881)  .  Moreover,  Holliday  notes  certain  duties  an  em- 
ployer owes  to  his  employees.  These  include:  (1)  providing  a  reasonablly  safe  place 
to  work;  (2)  furnishing  reasonably  safe  tools  and  appliances;  (3)  using  reasonable 
care  in  hiring  other  employees;  (4)  warning  the  inexperienced  employee  of  unknown 
dangers;  and  (5)  if  the  work  is  complex,  organizing  the  work  and  making  it  as  safe 
as  possible  by  enforcing  the  rules.  142  F.2d  at  1007.  Thus,  the  master  will  be  negli- 
gent if  he  fails  to  perform  any  of  these  duties,  and  the  servant  will  not  be  barred 
from  recovery  if  his  injury  results  from  this  negligence. 

eeMiss.  Code  Ann.  §  6998-04   (Supp.  1972) . 

("Generally,  the  Act  is  applicable  to  any  employer,  whether  a  person,  firm,  or 
corporation,  who  has  in  his  service  five  or  more  workmen  in  the  same  business.  Id.  § 
6998-03. 

es/d.  §  6998-05  (1952) .  However,  if  the  employer  fails  to  comply  with  the  Act 
and  provide  compensation  as  required,  the  employee  has  a  choice  between  two  reme- 
dies: (1)  claiming  compensation  under  the  Act,  or  (2)  suing  for  damages  in  a  court  of 
law.  Should  the  employee  decide  to  sue  at  law,  the  employer  is  prohibited  from 
pleading  assumption  of  risk  or  contributory  negligence  as  a  defense.  Id. 

69L.  B.  Priester  &  Son,  Inc.  v.  Bynum's  Dependents,  244  Miss.  185,  142  So.  2d  30 
(1962) ;  Walters  v.  Blackledge,  220  Miss.  485,  71  So.  2d  433  (1954) .  It  has  been  furth- 


1975]  COMMENTS  461 

men's  compensation  statutes  is  to  give  definite  economic  relief  without 
regard  to  fault  to  the  injured  employee,  while  relieving  the  employer 
from  the  possibility  of  common  law  actions.70 

Of  course,  in  cases  which  do  not  qualify  under  the  statute,  the  com- 
mon law  principles  of  assumption  of  risk  apply.71  Thus,  the  doctrine  is 
still  applicable  in  controversies  between  an  employer  and  an  independent 
contractor.72 

D.     Automobile  Accidents:  Host-Guest  Relationship 

When  automobile  accidents  occur,  a  host-guest  relationship  is  often 
involved.  The  general  rule  is  that  the  guest  assumes  all  the  ordinary 
risks  incident  to  travel  in  a  motor  vehicle.73  Thus,  the  guest  would  as- 
sume the  ordinary  risk  of  a  tire  blowout.74  The  guest  does  not,  however, 
assume  the  risks  caused  by  the  negligent  operation  of  a  vehicle  over 
which  he  has  no  control.75  Conversely,  the  guest  will  assume  risks  of  the 
driver's  negligence  if  the  guest  does  have  control  over  the  vehicle.  The 
Mississippi  court  has  held  that  one  who  knowingly  rides  with  a  drunken 
driver,  but  who  admits  that  she  could  have  taken  over  the  driving,  has 
assumed  the  risk.76  The  control  requirement  is  easily  analogized  to  the 
voluntary  element  required  for  assumption  of  risk.  If  the  guest  has 
control  over  the  operation  of  the  vehicle  to  the  extent  that  he  could 
stop  it,  take  over  its  operation,  or  refuse  to  ride,  then  his  choice  of 
remaining  in  the  vehicle  is  voluntary  and  he  assumes  the  risk. 

er  held  that  liability  under  the  Act  will  not  be  judged  by  common  law  principles. 
Barry  v.  Sanders  Co.,  211  Miss.  656,  52  So.  2d  493    (1951)  . 

7oV.  Dunn,  Mississippi  Workmen's  Compensation  §  2  (2d  ed.  1967)  : 
It  takes  from  the  employee  and  his  dependents  the  common  law  action  in 
tort  and  substitutes  a  measure  of  fixed  economic  relief  for  accidental  indus- 
trial injuries  without  reference  to  negligence  or  fault  as  to  the  cause  of  the 
injury.  On  the  other  hand,  it  relieves  industry  from  the  risk  of  common  law 
actions  and  substitutes  an  assumption  of  risk  for  all  covered  accidents,  with- 
in prescribed  monetary  limits,  regardless  of  negligence  or  fault  from  the 
causative  viewpoint. 

?iSee  May  v.  Vardaman  Mfg.  Co.,  244  Miss.  261,  142  So.  2d  18   (1962)  . 
72United  Roofing  &  Siding  Co.  v.  Seefeld,  222  So.  2d  406  (Miss.  1969). 
73Gregory  v.  Thompson,  248  Miss.  431,  160  So.  2d  195    (1964)  ;  Junkins  v.  Brown, 
238  Miss.  142,  117  So.  2d  712    (1960). 

74Monsour  v.  Farris,  181  Miss.  803,  181  So.  326  (1938)  (the  tire  had  traveled 
17,000  miles  and  had  no  apparent  defects) . 

70Gregory  v.  Thompson,  248  Miss.  431,  160  So.  2d  195  (1964);  Hatcher  v.  Dan- 
iel, 228  Miss.  196,  87  So.  2d  490  (1956) . 

76Morris  v.  Lammons,  243  Miss.  684,  139  So.  2d  867  (1962)  .  By  the  same  theory, 
most  courts  have  held  a  passenger  who  rides  with  a  speeding  driver,  and  who  does 
not  protest,  is  guilty  of  contributory  negligence.  Rice,  The  Automobile  Guest  and  the 
Rationale  of  Assumption  of  Risk,  27  Minn.  L.  Rev.  323,  347    (1943) . 


462  MISSISSIPPI  LA  W  JO  URN  A  L  [vol.  M 

By  far,  the  majority  of  automobile  accident  cases  in  which  the 
assumed  risk  doctrine  is  applied  involve  intoxicated  drivers.77  As  a  gen- 
eral rule,  if  the  guest  knows  of  the  driver's  intoxicated  condition  yet 
voluntarily  continues  to  ride,  he  has  assumed  the  risk  of  injury  caused 
by  the  driver's  intoxication.78  Difficulties  arise,  of  course,  when  estab- 
lishing the  required  elements.  The  Mississippi  Supreme  Court  has  stated 
that  the  knowledge  element  would  be  satisfied  if  the  driver  was  obviously 
drunk  and  his  intoxicated  condition  could  not  escape  the  knowledge  and 
observation  of  the  plaintiff.79  It  is  not  enough,  however,  that  the  plain- 
tiff should  have  known  about  the  driver's  intoxication;  he  must  have 
actual  knowledge.80  Proving  the  voluntariness  of  the  plaintiff's  consent 
is  another  problem  area.  It  should  be  recalled  that  the  plaintiff  must 
have  a  reasonable  alternative  if  his  conduct  is  to  be  considered  volun- 
tary.81 The  availability  of  such  an  alternative  would  be  difficult  to  prove 
if  the  plaintiff's  only  option  is  abandoning  the  car  many  miles  from 
home.82 

In  addition,  the  driver's  negligent  acts  may  sometimes  be  imputed  to 
the  passenger.83  As  a  result,  the  passenger  may  also  be  denied  recovery 
against  a  third  party   (not  the  host)    because  of  imputed  negligence.84 

E.     Other  Applications 

The  doctrine  is  not  limited  in  application  to  automobile  accidents 
and  employment  hazards;  it  has  evolved  into  other  areas  as  well.   For  ex- 

77Pedrick,  Taken  for  a  Ride:  The  Automobile  Guest  and  Assumption  of  Risk,  22 
La.  L.  Rev.  90,  94  (1961)  .  See  Griffin  v.  Holliday,  233  So.  2d  820  (Miss.  1970)  ;  Morris 
v.  Lammons,  243  Miss.  684,  139  So.  2d  867  (1962)  ;  Saxton  v.  Rose,  201  Miss.  814,  29 
So.  2d  646    (1947);  Chapman  v.  Powers,  150  Miss.  687,  116  So.  609    (1928)  . 

i&See,  e.g.,  Saxton  v.  Rose,  201  Miss.  814,  29  So.  2d  646  (1947) .  The  same  ration- 
ale apparently  applies  in  cases  where  "sleepiness"  rather  than  "drunkenness"  is  a 
factor.  See  Gower  v.  Strain,  169  Miss.  344,  145  So.  244    (1933) . 

79Saxton  v.  Rose,  201  Miss.  814,  29  So.  2d  646   (1947) . 

soGriffin  v.  Holliday,  233  So.  2d  820   (Miss.  1970) . 

siSee  text  at  note  39  supra. 

&*See  Baird  v.  Cornelius,  12  Wis.  2d  284,  107  N.W.2d  278,  286  (1961)  (concur- 
ring opinion)  . 

83Rice,  supra  note  77,  at  459. 

84Chapman  v.  Powers,  150  Miss.  687,  694,  116  So.  609,  611    (1928)  : 

If  it  is  manifest  that  the  host,  from  drunkenness,  or  other  cause,  is  unfit  to 

drive  the  car,  and  that  his  driving  will  endanger  the  life  and  limbs  of  others, 

and  the  guest  is  aware  of  that  condition  of  affairs,  and  voluntarily  rides  in 

the  car  with  such  a  host,  the  negligence  of  the  latter  becomes  the  negligence 

of  the  guest. 
Id.  at  694,   116  So.  at  611. 


1973]  COMMENTS  463 

ample,  the  owner  of  property  owes  no  duty  to  a  trespasser  or  licensee 
other  than  refraining  from  willful  and  wanton  injury.85  The  property 
owner  has  no  duty  to  warn  of  known  or  obvious  conditions,80  therefore, 
the  licensee  must  generally  assume  the  risk  of  whatever  he  encounters.87 
Thus,  a  licensee  who  enters  the  land  of  another  with  knowledge  of  a 
large  open  ditch,  assumes  the  risks  it  creates.88  In  addition,  although  a 
landowner  owes  business  invitees  the  duty  to  keep  the  premises  in  a 
reasonably  safe  condition,  lie  is  generally  not  liable  for  injuries  caused 
by  obvious  or  known  conditions.'0  Consequently  an  invitee  may  assume 
a  risk  by  knowing  and  appreciating  the  danger  and  by  deliberately  ex- 
posing himself  to  it.90 

Another  potential  area  for  the  application  of  the  doctrine  is  that  of 
products  liability.  The  general  rule  here  is  that  if  the  product  defect 
or  dangerous  condition  is  open  or  obvious,  the  manufacturer  owes  the 
consumer  no  duty  and  is  not  liable  for  damages.91 

Finally,  the  courts  have  held  the  doctrine  to  be  applicable  to  a  suit 
for  false  imprisonment,92  but  have  refused  to  apply  the  doctrine  to  hunt- 
ing accidents.93 


ssColeman  v.  Associated  Pipeline  Contractors,  Inc.,  444  F.2d  737    (5th  Cir.  1971) ; 
West  v.  Williams,  245  So.  2d  591    (Miss.  1971). 
sePRossER  §  60,  at  376. 

ssMcDonald  v.  Wilmut  Gas  &  Oil  Co.,  180  Miss.  350,  176  So.  395  (1937) ;  accord, 
Langford  v.  Mercurio,  254  Miss.  788,  183  So.  2d  150  (1966)  (licensee  familiar  with 
area  around  launderette  assumed  risk  of  falling  off  loading  ramp) . 

ssGeneral  Tire  &  Rubber  Co.  v.  Darnell,  221  So.  2d  104  (Miss.  1969)  ;  Stanley  v. 
Morgan  &  Lindsey,  Inc.,  203  So.  2d  473   (Miss.  1967) . 

oostrand  Enterprises,  Inc.  v.  Turner,  223  Miss.  588,  78  So.  2d  769  (1955)  (invitee 
who  did  not  know  about  hole  in  floor  held  not  to  assume  risk)  . 

siWard  v.  Hobart  Mfg.  Co.,  317  F.  Supp.  841  (S.D.  Miss.  1970)  ,  rev'd,  450 
F.2d  1176  (5th  Cir.  1971);  Harrist  v.  Spencer-Harris  Tool  Co.,  244  Miss.  84, 
140  So.  2d  558  (1962)  .  Although  the  district  court  in  Ward  ruled  as  a  matter 
of  law  that  the  doctrine  of  assumed  risk  was  not  applicable  (317  F.  Supp. 
at  853),  the  court  of  appeals  gave  more  weight  to  the  "obviousness"  factor  and  held 
that  an  obvious  defect  bars  recovery.  450  F.2d  at  1186. 

s^Pierson  v.  Ray,  352  F.2d  213  (5th  Cir.  1965)  ,  aff'd  in  part,  rev'd  in  part,  386 
U.S.  547  (1967)  .  "One  who  has  invited  or  consented  to  arrest  and  imprisonment 
should  be  denied  recovery."  352  F.2d  at  220. 

93Shurley  v.  Hoskins,  271  So.  2d  439  (Miss.  1973).  The  plaintiff,  who  was  hunt- 
ing turkeys,  was  shot  and  injured  by  one  of  his  fellow  hunters.  The  court  stated: 
"In  short,  a  member  of  a  hunting  party  does  not  assume  the  risk  that  one  of  his 
fellow  hunters  will  negligently  discharge  his  firearm."  Id.  at  444. 


464  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

II.     Comparison  of  Assumption  of  Risk  with 
Contributory  Negligence 

Assumption  of  risk  is  often  confused  with  contributory  negligence. 
The  overlapping  area  generally  involves  a  plaintiff  whose  actions  in  en- 
countering a  known  risk  may  be  unreasonable.94  Thus  if  the  dangers 
assumed  are  significantly  disproportionate  to  the  plaintiff's  conduct, 
his  actions  may  constitute  contributory  negligence,  rather  than  as- 
sumption of  risk.  In  other  words,  contributory  negligence  sometimes 
"consists  in  making  the  wrong  choice  and  voluntarily  encountering  a 
known  unreasonable  risk."95  It  is  obvious  how  this  could  be  confused 
with  assumption  of  risk. 

While  the  problem  of  distinguishing  assumption  of  risk  from  con- 
tributory negligence  has  not  gone  unnoticed  in  Mississippi,96  the  matter 
is  still  unresolved.  This  section  will  highlight  distinctions  and  provide 
insights  to  one  very  basic,  yet  extremely  important  question:  Does  the 
assumption  of  risk  doctrine  do  violence  to  the  legislative  intent  of  Mis- 
sissippi's comparative  negligence  statute? 

A.     Introduction  to  Mississippi's  Comparative  Negligence  Statute 

The  Mississippi  Supreme  Court  has  defined  contributory  negligence 
as  follows: 

Contributory  negligence  arises  when,  but  not  until,  the  injured 
person  by  his  own  conduct  has  done  something,  or  has  omitted 
to  do  something,  which  contributes  to  the  particular  event,  and 
at  the  particular  time  and  place,  which  was  the  immediate  cause 
of  the  injury.97 

Assumption  of  risk  frequently  overlaps  with  contributory  negligence.  In 
many  states  the  distinction  between  the  two  doctrines  is  immaterial,  as 
both  absolutely  bar  recovery  by  the  plaintiff.98  In  Mississippi,  however, 
the  distinction  becomes  crucial,  since  Mississippi  has  a  "pure"  compara- 
tive negligence  statute.99  This  statute  provides,  in  effect,  that  in  actions 
brought  for  personal  injuries  or  injury  to  property,  if  the  injured  person 

»4Prosser  §  68,  at  440-41. 

95/d.  at  441. 

9«Shell  &  Bufkin,  Comparative  Negligence  in  Mississippi,  27  Miss.  L.J.  105  (1956)  ; 
Wade,  Some  Recent  Changes  in  the  Law  of  Torts,  38  Miss.  L.J.  565  (1967)  .  See  Note, 
Torts-Effect  of  Mississippi's  Comparative  Negligence  Statute  on  Other  Rules  of  Laxv, 
39  Miss.  L.J.  493    (1968). 

07Saxton  v.  Rose,  201  Miss.  814,  823,  29  So.  2d  646,  649    (1947)  . 

98Prosser   §   68,    at   441. 

"Maraist  &  Barksdale,  Mississippi  Products  Liability  —  A  Critical  Analysis, 
43  Miss.  L.J.  139,  146  (1972)  . 


1973]  COMMENTS  465 

or  property  owner  was  contributorily  negligent,  he  will  not  be  completely 
barred  from  recovery.100  Instead,  "damages  shall  be  diminished  by  the 
jury  in  proportion  to  the  amount  of  negligence  attributable  to  the  person 
injured,  or  the  owner  of  the  property.  .  .  ,"101  Another  statute  provides 
that  "[a]ll  questions  of  negligence  and  contributory  negligence  shall  be 
for  the  jury  to  determine."102  Thus,  while  the  doctrine  of  assumed  risk 
will  completely  bar  recovery  by  the  plaintiff,  he  would  be  only  partially 
restricted  if  his  conduct  amounts  to  contributory  negligence. 

Mississippi's  comparative  negligence  statute  was  enacted  in  1910. 
It  applies  only  to  contributory  negligence  —  assumption  of  risk  is  not 
mentioned.  One  must  question,  therefore,  the  intent  of  the  legislature 
in  omitting  the  assumption  of  risk  principle  from  the  comparative  neg- 
ligence statute.  Did  the  legislature  intend  to  retain  a  defense  which 
would  completely  bar  recovery,  or  did  they  merely  fail  to  realize  the 
doctrine's  potential?  An  examination  of  the  cases  reveals  that  the  only 
assumption  of  risk  problems  Mississippi  faced  in  1910  were  in  the 
master-servant  area.  Furthermore,  in  1914,  assumption  of  risks  caused 
by  the  master's  negligence  was  abolished  by  statute.103  Thus,  it  appears 
that  at  the  time  the  comparative  negligence  statute  was  passed,  the  legis- 
lature was  cognizant  only  of  the  doctrine's  adverse  effects  in  the  area  of 
the  master-servant  relationship,  an  area  which  was  subsequently  modified. 
The  question  may  now  be  posed:  Had  the  legislature  known  of  the  future 
extensions  of  the  assumed  risk  doctrine,  would  they  have  limited  it  as 
they  limited  contributory  negligence?  As  the  late  Dean  Prosser  stated  in 
his  discussion  of  the  subject: 

In  all  probability  this  defeats  the  basic  intention  of  the  [com- 
parative negligence]  statute,  since  it  continues  an  absolute  bar 
in  the  case  of  one  important,  and  very  common,  type  of  negli- 
gent conduct  on  the  part  of  the  plaintiff.  It  can  scarcely  be 
supposed  in  reason  that  the  legislature  has  intended  to  allow  a 
partial  recovery  to  the  plaintiff  who  has  been  so  negligent  as 
not  to  discover  his  peril  at  all,  and  deny  it  to  one  who  has  at 
least  exercised  proper  care  in  that  respect,  but  has  made  a  mis- 
take of  judgement  in  proceeding  to  encounter  the  danger  after 
it  is  known.104 

Other  sources  have  expressed   similar   views.105    Consequently,    the  re- 

iooMiss.  Code  Ann.  §  1454   (1956). 
ioi/d. 

102/d.  §  1455. 

io3 Act  of  Feb.  28,  1914,  ch.  156,  §  1,  [1914]  Gen.  Laws  Miss.  200. 
io4Prosser  §  68,  at  457. 

iosRestatement  (Second)   of  Torts  §  496  A,  comment  d  at  563    (1965)  : 
It  would  appear  that,  unless  such  a  construction  is  clearly  called  for,  it  de- 
feats the  intent  of  the  statute  in  any  case  where  the  same  conduct  constitutes 


466  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

mainder  of  this  comment  should  be  viewed  with  this  basic  inquiry  in 
mind. 

B.     Judicial  Distinction  Between  Assumption  of  Risk 
and  Contributory  Negligence 

Of  primary  importance  is  the  task  of  determining  the  correct  cate- 
gory in  which  to  assign  the  plaintiffs  conduct.  Again,  the  emphasis  will 
be  on  those  areas  in  which  either  assumption  of  risk  or  contributory 
negligence  appears  to  be  applicable.  The  most  common  example  of  this 
difficult  area  is  that  of  the  plaintiff  who  walks  into  a  busy  street.  At  first 
glance  it  would  appear  that  the  plaintiff  has  voluntarily  encountered  a 
known  risk.  Yet  the  courts  generally  hold  otherwise,  stating  that  the 
plaintiff  has  not  consented  to  being  hit;  rather,  he  has  demanded  that 
the  drivers  use  care.  This  is  a  form  of  contributory  negligence.100 

In  attempting  to  distinguish  the  two  doctrines,  the  Mississippi  Su- 
preme Court  has  tersely  labeled  assumption  of  risk  as  "venturousness" 
and  contributory  negligence  as  "carelessness."107  More  specifically,  the 
court  has  declared  that  assumption  of  risk  involves  "a  mental  state  of 
willingness  to  deliberately  venture  forth  into  a  situation  containing  dan- 
gers which  are  fully  known  and  appreciated  by  the  plaintiff,"  whereas 
contributory  negligence  implies  "the  absence  of  a  deliberate  choice  and 
an  intelligent  realization  of  the  risk  presented  by  a  given  situation.  .  .  ."108 
Furthermore,  the  court  has  frequently  acknowledged  that  assumption  of 

both  contributory  negligence  and  assumption  of  risk,  since  the  purpose  of  the 
act  would  appear  to  be  to  reduce  the  damages  in  the  case  of  all  such  negligent 
conduct,  whatever   the  defense  may  be  called. 
Pedrick,  supra  note  78,  at  98: 

Whatever  the  criterion  for  apportioning  damages,  however,  the  legislature  in 
those  jurisdictions  where  comparative  negligence  has  been  adopted  has  made 
plain  its  desire  that  plaintiffs  not  be  barred  from  recovery  because  of  their 
contributory    fault. 

In  the  face  of  this  legislative  prescription  it  would  be  a  shocking  thing  if  one 
class  of  cases  were  singled  out  by  the  courts  as  ineligible  for  this  damage  ap- 
portionment  treatment. 

iogprosser  §  68,  at  445.  See  Wright  v.  Standard  Oil  Co.,  319  F.  Supp.  1364  (N.D. 
Miss.  1970)  .  In  Wright  a  young  child,  while  attempting  to  cross  a  heavily  traveled 
highway,  was  struck  and  injured  by  a  gasoline  truck.  The  defense  pleaded  assump- 
tion of  risk  because  the  child  was  left  across  the  street  by  his  father,  who  knew 
the  road  was  busy.  The  court,  nevertheless,  rejected  the  assumption  of  risk  conten- 
tion by  stating  that  the  father  did  not  have  "actual  knowledge  of  negligent  vehicular 
operation  by  third  parties  which  would  increase  the  danger  to  his  child  beyond  that 
posed  by  ordinary  traffic  hazards."  Id.  at  1373.  The  court  added,  however,  that  the 
father  might  have  been  contributorily  negligent. 

lorSaxton  v.  Rose,  201  Miss.  814,  823,  29  So.  2d  646,  649    (1947)  ;  accord,  Missis- 
sippi Export  R.R.  v.  Temple,  257  So.  2d  187,  190   (Miss.  1972)  . 
losshurley  v.  Hoskins,  271  So.  2d  439,  443    (Miss.   1973)  . 


1973]  COMMENTS  467 

risk  is  governed  by  a  subjective  standard,  whereas  contributory  negligence 
is  tested  by  an  objective  standard  of  the  reasonable  man.109  As  a  result, 
the  correct  classification  is  generally  grounded  on  the  extent  of  the  plain- 
tiff's knowledge.  If  the  plaintiff  did  not  actually  know  about  the  danger, 
but,  as  a  reasonable  man,  should  have  known  about  it,  then  he  has  been 
careless  and  therefore  contributorily  negligent.  On  the  other  hand,  if  the 
plaintiff  actually  knew  about  the  risk,  his  conduct  is  venturous,  and  thus 
he  assumes  the  risk. 

C.     Analysis  and  Comparison  of  Cases  Based  On 
Assumption  of  Risk  and  Contributory  Negligence 

Although  the  courts  have  attempted  to  define  the  dissimilarities  of 
the  doctrines,  it  becomes  necessary  to  inspect  the  cases  more  closely  in 
order  to  determine  the  true  distinctions.  Therefore,  the  following  four 
sections  analyze  several  cases  involving  both  assumption  of  risk  and  con- 
tributory negligence. 

1.     The  Knowledge  Requirement 

As  noted  in  an  old  case,  "Knowledge  of  the  risk  is  the  watchword 
of  .  .  .  assumption  of  risk.  .  .  ."no  Hence  the  plaintiff's  knowledge  will 
determine  whether  he  has  assumed  a  risk  and  will  be  completely  barred 
from  recovery,  or  wrhether  he  has  been  merely  contributorily  negligent 
and  will  be  allowed  partial  recovery.  Generally  speaking,  Mississippi 
cases  have  held  that  actual  knowledge  of  the  risk  is  necessary.111  If  actual 
knowledge  is  required,  however,  why  doesn't  every  plaintiff  recover  who 
testifies  under  oath  that  he  had  no  knowledge  of  the  danger?  Certainly 
the  first  advice  a  lawyer  would  offer  his  client  in  such  a  situation  would 
be  to  keep  quiet  and  admit  nothing.  The  Mississippi  Supreme  Court  has 
solved  this  dilemma  by  declaring  that  actual  knowledge  may  be  proved 
from  the  circumstances.112  Similarly,  the  court  has  stated  that  the  plain- 
tiff may  not  overlook  obvious  dangers. 113  As  a  result,  the  most  critical 
part  of  the  case  is  usually  the  proof  of  the  circumstances. 

Since  knowledge  may  be  proved  from  the  circumstances,  it  is  neces- 
sarily more  difficult  for  the  courts  to  retain  the  completely  subjective 
test  that  is  necessary  for  knowledge.    Consider,  for  example,  the  case  of 

w^See  note  26  supra. 

noCincinnati,  N.O.  &  T.P.  Ry.  v.  Thompson,  236  F.  1,  9    (6th  Cir.  1916). 

mSee  note  21  supra. 

mSee  text  at  notes  28  and  31  supra. 

n35ee  Harrist  v.  Spencer-Harris  Tool  Co.,  244  Miss.  84,  140  So.  2d  558   (1962) . 


468  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Herod  v.  Grant,11*  in  which  the  plaintiff  was  injured  while  hunting  deer 
from  the  back  of  a  pickup  truck  at  night.  The  Mississippi  court  first 
noted  that  the  knowledge  factor  is  governed  by  a  subjective  standard. 
Nonetheless,  the  court  admitted  that  when  the  facts  are  such  that  the 
plaintiff  "must  have  had  knowledge"  of  the  risk,  the  situation  is  then 
"equivalent  to  actual  knowledge."115  Thus,  the  test  has  evolved  from 
the  plaintiff  must  actually  know  of  the  danger  to  the  circumstances  are 
such  that  any  person  of  ordinary  intelligence  must  have  known  of  the 
danger.  From  a  practical  standpoint,  this  test  appears  to  be  dangerously 
approaching  the  objective  standard  required  for  contributory  negligence. 
Is  "must  have  known"  so  different  from  "should  have  known"  that  the 
injured  party  should  be  absolutely  barred  from  recovery?  If  not,  then 
has  not  the  intent  of  the  damage-apportionment  statute  been  thwarted? 

2.     Automobile  Defect  Cases 

Since  circumstances  are  critical  to  a  determination  of  whether  the 
plaintiff  assumes  a  risk,  it  should  be  helpful  to  examine  two  similar  auto- 
mobile defect  cases  and  the  circumstances  involved  in  each. 

In  Robbins  v.  Milner  Enterprises,  Inc.,116  the  plaintiff  was  injured 
when  the  brakes  of  his  automobile  locked  and  the  vehicle  overturned. 
The  plaintiff  testified  that  the  brakes  had  been  recently  repaired,  but 
that  the  car  had  been  "pulling"  or  "grabbing"  slightly  during  his  drive. 
The  Fifth  Circuit  Court  of  Appeals  rejected  the  assumption  of  risk  con- 
tention, stating  that  for  the  doctrine  to  be  applied,  the  plaintiff  must 
have  had  knowledge  that  "the  brakes  were  seriously  defective  presenting 
immediate,  obvious  dangers.  .  .  ."117  The  court  reasoned  that  since  the 
car  had  traveled  over  150  miles  without  any  "serious  manifestations"  of 
trouble,  the  plaintiff  could  assume  the  car  to  be  safe.118 

In  contrast,  consider  the  case  of  Runnels  v.  Dixie  Drive-It-Y  our  self 
System  Jackson  Co119  in  which  a  defective  front  end  in  the  plaintiffs 
automobile  caused  an  accident.  Testimony  indicated  the  automobile  ex- 
perienced a  serious  "shimmying"  in  the  front  end.    The  Mississippi  Su- 

H4262  So.  2d  781   (Miss.  1972). 

iis/d.  at  783.  The  court  cited  with  approval  1  D.  Blashfield,  Automobile  Law  and 
Practice  §  64.3  (3rd  ed.  1965) ,  which  states  that  when  a  plaintiff  claims  that  he 
did  not  understand  the  risk  "the  courts  have  indicated  a  willingness  to  override  such 
contentions  of  plaintiff  where  they  find  that  any  person  of  ordinary  intelligence  must, 
as  a  matter  of  law,  have  known  and  appreciated  the  risk."  Id.  at  540. 

H6278  F.2d  492   (5th  Cir.  1960) . 

ii7/d.  at  496. 

iis/d. 

H9220  Miss.  678,  71  So.  2d  453   (1954) . 


1973]  COMMENTS  469 

preme  Court  in  this  case,  however,  applied  the  assumed  risk  doctrine 
stating  that  the  plaintiff's  prior  experience  with  the  "shimmying"  prob- 
lem charged  him  with  knowledge  of  a  serious  danger.  Thus,  in  Robbins 
the  circumstances  did  not  evince  a  serious  danger,  so  there  was  no  bar 
(other  than  contributory  negligence)  to  recovery.  In  Runnels,  however, 
serious  danger  was  noted,  and  recovery  was  denied.  Although  the  cases 
are  distinguishable,  the  distinctions  do  not  appear  so  unquestionable 
that  one  party  should  be  completely  barred  from  relief. 

For  example,  would  not  the  Robbins  court  have  been  justified  in 
declaring  the  defective  brakes  to  be  a  serious  danger?  Since  the  brakes 
had  been  previously  inoperable  and  were  supposedly  repaired  in  a  garage, 
but  still  did  not  function  properly,  could  these  facts  have  alerted  a  reason- 
able person  to  serious  danger?  Indeed,  are  not  defective  brakes  always 
serious?  Suppose,  furthermore,  that  the  plaintiff  had  testified  the  brakes 
pulled  "sharply"  instead  of  "slightly."  Would  this  testimony  indicate  a 
serious  defect?  If  so,  should  this  alter  the  case  to  such  an  extent  as  to 
bar  the  plaintiff  completely  from  recovery? 

On  the  other  hand,  if  the  plaintiff  in  Runnels  had  no  prior  experi- 
ence with  shimmying  could  he  correctly  be  charged  with  knowledge  of  a 
serious  defect?  Furthermore,  who  is  to  say  that  a  shimmying  front  end 
is  inherently  more  dangerous  than  defective  brakes?  It  appears  the  doc- 
trine of  assumed  risk  could  have  been  applicable  in  either  case,  but  the 
Robbins  court  more  properly  classified  the  problem  under  contributory 
negligence.  Again,  did  the  legislature  intend  for  close  cases  such  as  these 
to  have  diverse  results? 

3.    Employment  Hazard  Cases 

Most  cases  involving  employee  injury  are  covered  by  workmen's 
compensation  statutes.  Nevertheless,  these  statutes  do  not  always  protect 
an  employee  when  his  injury  results  from  the  negligence  of  someone 
other  than  his  employer.  White  v.  Mississippi  Power  &  Light  Co.,120  con- 
cerns an  injury  to  a  county  road  employee.  The  plaintiff  was  working 
near  the  boom  of  a  dragline  when  it  suddenly  struck  and  knocked  down 
some  high  voltage  wires  which  seriously  burned  him.  Testimony  con- 
firmed that  the  plaintiff  had  previously  been  warned  about  the 
dangerous  power  lines.  He  was  further  advised  to  stay  on  the  dragline 
or  away  from  it  when  the  boom  was  near  the  power  lines.  From  all 
outward  appearances,  this  would  appear  a  suitable  case  in  which  to  apply 
the  assumption  of  risk  doctrine:  the  plaintiff  had  actual  knowledge  of 
the  danger,  he  appreciated  the  risk,  and  he  voluntarily  ignored  the 

120196  So.  2d  343   (Miss.  1967)  . 


470  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

warnings  and  continued  to  work  in  a  dangerous  area.  Yet  the  Mississippi 
Supreme  Court  refused  to  apply  the  doctrine,  and  offered  no  specific 
reason  for  its  conclusion.  From  the  text  it  appears  the  court  declined 
to  apply  the  doctrine  in  this  type  case  simply  because  of  the  harsh 
consequences  to  the  plaintiff.  The  court  avowed: 

It  is  a  rare  case,  indeed,  where  one  who  is  under  no  contract- 
ual relationship  requiring  him  to  assume  the  ordinary  risk  of 
his  occupation— but  who  knowingly  consents  to  assume  the  risk 
of  electrocution  or  injury  from  some  other  deadly  agency  cal- 
culated to  destroy  him— acts  in  such  a  venturesome  manner  as 
to  bring  into  operation  the  legal  doctrine  of  volenti  non  fit  in- 
juria as  a  defense  in  a  suit  for  his  injury.121 

Although  the  court's  approach  to  the  case  may  be  equitable,  would  not 
the  application  of  the  assumed  risk  doctrine  have  been  justified?  All  ele- 
ments of  the  doctrine  were  present,  and  the  plaintiff  had  a  simple  alter- 
native to  avoid  the  danger.  The  instant  court's  attitude  reflects  a 
reluctance  to  apply  the  doctrine  under  these  circumstances,  and  it  appears 
their  reasoning  could  prevail  in  most  other  assumption  of  risk  cases  as 
well. 

4.    Intoxicated  Driver  Cases 

Perhaps  the  most  notorious  cases  in  which  the  doctrine  is  applied 
are  those  involving  an  intoxicated  automobile  driver.  Generally  speak- 
ing, an  automobile  passenger  assumes  the  risk  of  dangers  created  by  the 
intoxicated  driver.122  The  passenger,  of  course,  must  know  of  the  driver's 
intoxicated  condition  and  he  must  voluntarily  incur  that  risk.123  Actual 
knowledge  may  be  presumed  if  the  driver's  intoxicated  condition  is  ob- 
vious.124 The  courts,  therefore,  generally  rely  on  the  circumstances  to 
determine  obvious  intoxication.  Significant  factors  to  consider  include 
the  driver's  actions  and  statements,  and  the  amount  of  alcohol  he  has 
consumed.  For  instance,  in  Petersen  v.  Klos,125  the  testimony  was  contro- 
verted as  to  how  much  beer  the  driver  had  actually  consumed.  Conse- 
quently, there  was  insufficient  evidence  to  prove  obvious  intoxication. 
Needless  to  say,  the  quantity  of  alcohol  a  person  has  absorbed  is  not  a 
consistently  accurate  determinate.  Other  factors,  such  as  the  length  of 

121/d.  at  353. 

i22£.gv  Griffin  v.  Holliday,  233  So.  2d  820  (Miss.  1970)  ;  Morris  v.  Lammons, 
243  Miss.  864,  139  So.  2d  867  (1962) ;  Saxton  v.  Rose,  201  Miss.  814,  29  So.  2d  646 
(1947) . 

i23£.gv  Morris  v.  Lammons,  243  Miss.  684,  139  So.  2d  867  (1962)  ;  Saxton  v.  Rose, 
201   Miss.  814,  29  So.  2d  646    (1947). 

i24Morris  v.  Lammons,  243  Miss.  684,  139  So.  2d  867    (1962) . 

125426  F.2d  199    (5th  Cir.   1970),  amended,  433  F,2d  911    (5th  Cir.   1970). 


1973]  COMMENTS  471 

the  drinking  period  and  the  alcoholic  tolerance  of  the  individual,  should 
be  considered. 

With  these  facts  in  mind,  consider  once  again  the  passenger's 
knowledge.  How  often  does  the  passenger  know  that  the  driver  is  so 
drunk  that  he  is  unable  to  drive  safely?  For  example,  judge  the  signif- 
icance of  these  statements: 

"I  thought  he  was  just  putting  on  a  show;" 

"I  didn't  really  think  he  was  drunk;" 

"I  knew  he  had  drunk  a  lot,  but  I  still  thought  he  could  drive;"  or 

"We've  gone  drinking  like  this  hundreds  of  times  before  and  never 

had  an  accident." 

Theoretically,  would  not  any  of  these  statements  be  sufficient  to  deny 
true  knowledge  and  appreciation  of  the  risk  and  thus  prohibit  the  ap- 
plication of  the  doctrine? 

The  voluntariness  element  is  also  essential.  If  the  passenger  protests 
the  driver's  actions,  would  his  ride  remain  a  voluntary  one?  In  one  Mis- 
sissippi case  the  plaintiff  was  relieved  from  the  operation  of  the  doctrine 
because  he  testified:  "he  [the  driver]  slowed  down  and  I  thought  he  was 
going  to  stop,  but  he  kept  on  going."126  The  court  held  that  this  testi- 
mony rendered  his  actions  involuntary.  Assuming  no  other  guests  were 
in  an  automobile,  then,  could  a  passenger  not  protect  himself  by  testify- 
ing simply  that  he  told  the  driver  to  let  him  drive,  but  that  the  driver  re- 
fused; or  that  he  thought  the  driver  was  going  to  stop  and  let  him  drive? 

Furthermore,  alternatives  available  to  the  passenger  play  a  significant 
role.  If  the  passenger  has  no  reasonable  alternative,  his  acceptance  of 
the  ride  is  not  voluntary.127  Thus,  recovery  might  be  dependent  upon 

the  vigor  of  a  wife's  protests  to  her  husband,  or  her  failure  to 
leave  the  car  many  miles  from  home,  or  whether  a  fifteen  year 
old  girl  sufficiently  protests  against  the  reckless  driving  of  an 
intoxicated  driver  and  asks  to  be  let  out  of  the  car.  .  .  .128 

Similarly,  is  the  alternative  of  "abandoning  ship  at  some  remote  spot" 
really  an  alternative?129  Moreover,  should  recovery  have  to  depend  on 
the  occurrence  of  one  of  these  dilemmas?130  Once  again,  a  more  equitable 
result  should  be  reached  in  a  comparative  negligence  jurisdiction. 

i26Canton  Broiler  Farms,  Inc.  v.  Warren,  214  So.  2d  671,  676    (Miss.   1968). 

w?See  text  at  notes  39  and  40  supra. 

i28Baird  v.  Cornelius,  12  Wis.  2d  284,  107  N.W.2d  278,  286    (1961) . 

i29Pedrick,  supra  note  77,  at  99. 

isoThe  Wisconsin  Supreme  Court,  when  confronted  with  this  problem,  stated, 
"A  rule  of  law  which  makes  complete  denial  of  recovery  dependent  upon  the  vigor 
of  a  wife's  protests  ...  is  one  which  is  open  to  question  and  ought  to  be  re-examined." 


472  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

III.  Conclusions 

A.  The  "Real"  Uses  of  the  Doctrine 

It  has  been  argued  that  the  assumption  of  risk  doctrine  causes  con- 
fusion by  duplicating  other  doctrines,  and  that  it  denies  recovery  in 
cases  of  genuine  hardship.131  It  has  been  further  contended  that  cases 
under  the  doctrine  would  be  more  precisely  settled  by  reference  to  the 
concepts  of  "duty"  and  "contributory  negligence."132  As  a  result,  many 
legal  writers  favor  abolition  of  assumption  of  risk.133  Moreover,  several 
states  have  either  partially  or  totally  abolished  the  doctrine.134  The  fol- 

Baird  v.  Cornelius,  12  Wis.  2d  284,  107  N.W.2d  278,  286    (1961) .  Another  author  ex- 

presses  a  similar  view  that  "to  charge  the  plaintiff  with  an  agreement  to  accept  a 

risky  driver  when  the  alternative  was  to  abandon  ship  at  some  remote  spot  simply 

discounts  the  duress  that  situations  and  relationships  can  exert."  Pedrick,  supra  note 

77,  at  99. 

isiProsser  §  68,  at  454. 

i^See  Rice,  supra  note  77,  at  460,  467;  Wade,  The  Place  of  Assumption  of  Risk 

in  the  Law  of  Negligence,  22  La.  L.  Rev.  5,  14    (1962)  . 

i33£.gv  2  F.  Harper  &  F.  James,  Jr.,  The  Law  of  Torts  1191    (1956)  .  "Except  for 

express  assumption  of  risk  ...  the  term  and  the  concept  should  be  abolished."  Green, 

Assumed  Risk  as  a  Defense,  22  La.  L.  Rev.  77,  89   (1961)  : 

The  ease  of  convertibility  of  one  defense  into  some  other  makes  the  choice 
of  defensive  theory  largely  a  matter  of  professional  taste.  The  best  usage  is  the 
one  that  most  sharply  focuses  the  defensive  facts.  Assumed  risk  is  usually  too 
blunt  and  too  comprehensive  to  serve  a  function  in  a  highly  developed  adver- 
sary process. 

Id.  Rice,  supra  note  77,  at  467: 

Logically,  it  [assumption  of  risk]  seems  clearly  unjustifiable,  not  only  because 
it  is  impossible  to  make  any  conceptual  distinction  between  the  rule  and  that 
of  contributory  negligence,  but  because  the  standard  of  conduct  under  each 
doctrine  seems  essentially  to  have  been  the  same,  and  the  variance  in  the 
effect  of  such  conduct  when  conditioned  by  other  legal  principles  impinging 
upon  one  doctrine  or  the  other  has  on  the  whole  been  unfortunate. 

Id.  Wade,  The  Place  of  Assumption  of  Risk  in  the  Law  of  Negligence,  22  La.  L. 

Rev.  5,  14    (1961)  : 

Accurate  analysis  in   the  law  of  negligence  would  probably  be  advanced  if 

the  term  were  eradicated  and  the  cases  divided  under  the  topics  of  consent, 

lack  of  duty,  and  contributory  negligence. 
Id. 

i34Leavitt  v.  Gillaspie,  443  P.2d  61,  68  (Alaska  1968)  (the  court  disapproved  of 
the  concept  of  assumption  of  risk) ;  Fawcett  v.  Irby,  92  Idaho  48,  436  P.2d  714,  720 
(1968)  (concurring  opinion)  (retained  the  doctrine  in  master  -  servant  relationship 
and  in  express  contract  situations)  ;  Parker  v.  Redden,  421  S.W.2d  586,  592  (Ky.  1967) 
(abolished  completely)  ;  Feigner  v.  Anderson,  375  Mich.  23,  133  N.W.2d  136  (1965) 
(retained  in  master-servant  cases)  ;  Bolduc  v.  Crain,  104  N.H.  163,  181  A.2d  641,  644 
(1962)  (assumption  of  risk  not  available  as  defense  in  common  law  tort  action)  ; 
McGrath  v.  American  Cyanamid  Co.,  41  N.J.  272,  196  A.2d  238  (1963)  (abolished 
completely);  Williamson  v.  Smith,  83  N.M.  336,  491  P.2d  1147  (1971)  (assumption 
of  risk  no  longer  a  defense;  now  covered  by  law  on  negligence  and  contributory  negli- 
gence) . 


1973]  COMMENTS  473 

lowing  is  offered  as  a  discussion  of  the  "real"  uses  of  the  doctrine  and 
the  problems  which  would  logically  ensue  if  the  doctrine  were  abrogated. 

1.    Discourages  Disfavored  Conduct 

It  is  interesting  to  note  that  the  doctrine  is  often  introduced  in  cases 
where  the  conduct  of  the  participants  is  frowned  upon  by  the  courts  and 
the  public.135  For  example,  the  courts  have  historically  barred  recovery 
to  passengers  who  ride  with  intoxicated  drivers.136  It  has  been  suggested 
that  the  courts  are  expressing  their  disapproval  of  the  plaintiff's  partici- 
pation in  foolhardy  conduct.137  Admittedly,  public  policy  is  served  by 
discouraging  rash  behavior.  If  the  assumption  of  risk  doctrine  is  to  be 
applied  consistently,  however,  the  moralistic  atmosphere  of  the  conduct 
should  not  be  relevant.  For  instance,  in  Herod  v.  Grant,™*  the  plaintiff 
was  hunting  deer  at  night  from  the  back  of  a  pickup  truck.  During  the 
ride,  the  plaintiff  was  thrown  from  the  truck  and  injured.  The  court 
held  that  the  plaintiff  did  indeed  assume  the  risk  of  injury  by  riding 
in  the  truck.  Suppose,  however,  that  the  plaintiff  had  been  looking  for 
lost  livestock  rather  than  hunting  deer— would  the  result  have  been  the 
same?  Certainly  imprudent  activities  should  be  discouraged,  but  that  is 
precisely  what  contributory  negligence  is  all  about.  A  person  is  con- 
tributorily  negligent  if  he  fails  to  care  for  his  person— under  the  circum- 
stances. Thus  the  "circumstances"  in  cases  such  as  Herod  would  be 
automatically  considered. 

2.    Allows  a  Defense  in  Those  Areas  Where  Contributory 
Negligence  Is  No  Defense  At  All 

Another  area  in  which  the  proper  labeling  of  the  plaintiffs  conduct 
becomes  significant  is  one  in  which  contributory  negligence  is  no  defense 
at  all.  For  example,  assumption  of  risk  bars  recovery  in  actions  founded 
on  strict  liability,  while  the  plaintiff's  contributory  negligence  may 
not.139  The  plaintiff  may  assume  the  risk  when  the  defendant  is  guilty 
of  wilful  and  wanton  negligence,  but  his  contributory  negligence  would 
not  have  been  a  defense.110  Furthermore,  assumption  of  risk  may  also 

i35S(?e,  e.g.,  Herod  v.  Grant,  262  So.  2d  781  (Miss.  1972)  (deer  hunting  at  night) ; 
Griffin  v.  Holliday,  233  So.  2d  820    (Miss.  1970)    (intoxicated  driver) . 

i36Sec  note  78  supra. 

i37Pedrick,  supra  note  77,  at  99.  "In  short,  on  moralistic  grounds  they  bar  the 
plaintiff  on  the  basis  of  his  participation  or  involvement  in  the  defendant's  tortious 
conduct." 

138262  So.  2d  781    (Miss.  1972) . 

isgProsser  §  68,  at  456.  See  Maraist  &  Barksdale,  supra  note  100,  at  191. 

i40Prosser  §  68,  at  456.  See  Anderson  v.  Eagle  Motor  Lines,  Inc.,  423  F.2d  81 
(5th  Cir.  1970) . 


474  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

serve  as  a  defense  when  the  defendant  had  the  last  clear  chartce.141  When 
considered  in  light  of  Mississippi's  comparative  negligence  statute,  the 
inequity  of  these  results  is  manifest.  For  example,  in  a  products  liability 
suit  the  failure  of  an  injured  party  to  discover  and  avoid  injury  from  a 
patently  injury-producing  defect  should  not  be  an  absolute  bar  to  re- 
covery.142 In  Mississippi,  however,  the  injured  consumer  may  be  denied 
relief  for  injuries  caused  by  an  open  or  obvious  defect.143  This  appears 
to  violate  the  legislative  policy  of  "comparing"  negligence.  A  similar 
analogy  would  likely  apply  to  cases  involving  wilful  and  wanton  neg- 
ligence of  the  defendant.  Assuming  the  defendant  was  guilty  of  gross 
negligence,  while  the  plaintiff  was  guilty  of  only  ordinary  negligence, 
the  plaintiff  would  presumably  be  entitled  to  some  damages  simply  be- 
cause of  this  lesser  degree  of  negligence.  If  he  assumed  the  risk,  however, 
he  would  be  totally  barred  from  recovery.  Again,  the  legislative  intent  is 
capable  of  being  thwarted. 

3.  Allows  The  Court  to  Take  the  Case  from  the  Jury- 
In  some  instances  the  court  may  hold,  as  a  matter  of  law,  that  the 
plaintiff  assumed  the  risk  and  thus  direct  a  verdict  for  the  defendant. 
Assumption  of  risk,  however,  only  duplicates  other  concepts  of  law  which 
permit  the  court  to  take  the  case  from  the  jury,  or,  in  Mississippi,  permit 
the  jury  to  take  the  case  out  of  the  comparative  negligence  rule.  The 
concepts  of  "duty"  or  "proximate  cause"  would  suffice  as  substitutes.  For 
example,  if  the  court  determined  that  the  defendant  owed  no  duty  to 
the  plaintiff,  the  plaintiff  would  be  barred  from  recovery  as  a  matter  of 
law.  Similarly,  if  the  plaintiffs  conduct  amounted  to  the  sole  proximate 
cause  of  his  injury,  the  court  could  prevent  his  case  from  reaching  the 
jury.144 

The  basics  of  tort  law  require  that  for  a  plaintiff  to  recover,  he  must 
prove  the  defendant  has  breached  a  duty.  Thus  it  is  incumbent  for  the 
plaintiff  to  prove  the  existence  of  a  duty.  If  no  duty  exists,  there  can 
be  no  breach,  and  the  plaintiff  will  suffer  a  directed  verdict.  When  a 
defendant  pleads  assumption  of  risk,  he  is  logically  arguing  that  because 
of  the  plaintiff's  conduct,  he  should  have  no  cause  of  action  against  the 
defendant.  When  so  considered,  assumption  of  risk  does  nothing  more 
than  deny  the  defendant's  duty  of  care.  Hence  the  same  result  may  be 

i4iProsser  §  68,  at  456. 

i42Maraist  &  Barksdale,  supra  note  100,  at  191. 

i43Harrist  v.  Spencer-Harris  Tool  Co.,  244  Miss.  84,  140  So.  2d  558,  561-62  (1962) : 
Maraist  &  Barksdale,  supra  note  100,  at  191. 

mSee  Jones  v.  Greer  Rice  Dryer  &  Shop,  Inc.,  262  So.  2d  419  (Miss.  1972); 
Jackson  Ready-Mix  Concrete  v.  Sexton,  235  So.  2d  267    (Miss.  1970)  . 


1973]  COMMENTS  475 

reached  under  the  concepts  of  "assumption  of  risk"  and  "lack  of  duty." 
For  this  reason,  the  term  "assumption  of  risk"  contributes  needless  dup- 
lication and  confusion. 

The  leading  opponent  of  the  abolition  movement  was  the  late  Dean 
Prosser.  Prosser  opposed  the  abolition  of  the  doctrine  in  favor  of  duty 
primarily  because  of  procedural  difficulties.145  In  a  normal  lawsuit,  the 
burden  of  proof  of  the  duty  and  its  breach  is  upon  the  plaintiff.  Like- 
wise the  burden  of  proof  of  an  affirmative  defense  (such  as  assumption 
of  risk)  falls  on  the  defendant.  Prosser  suggested  that  a  shift  of  ground 
to  duty  would  correspondingly  shift  the  burden  of  proof  to  the  plain- 
tiff, thus  imposing  a  procedural  disadvantage  upon  him.146  One  com- 
mentator reasons  that  there  has  been  no  real  shift  in  burden,  since  the 
plaintiff  simply  retains  a  burden  already  his.147  This  tends  to  over- 
simplify the  true  problem,  however,  since  the  plaintiff  is  ordinarily  re- 
quired to  make  only  a  prima  facie  showing  that  a  duty  exists.  Thus,  it 
appears  that  the  defendant  must  then  come  forward  with  positive  proof 
of  no  duty.  Consider,  for  example,  the  situation  where  a  spectator  in 
the  bleachers  of  a  baseball  park  is  hit  and  injured  by  a  foul  ball.  The 
injured  spectator  may  establish  a  prima  facie  case  simply  by  proving  the 
existence  of  a  duty  upon  the  owner  of  the  baseball  park  to  provide 
screened  seats  for  the  patrons.  It  is  possible  for  the  defendant,  however, 
to  deny  the  existence  of  a  duty  by  proving  that  screened  seats  were  avail- 
able for  those  who  desired  to  use  them.  Prosser  contended,  therefore, 
that  if  the  defendant  must  prove  no  duty,  the  result  is  nothing  more  than 
a  change  in  terminology.  If  this  is  true,  Prosser  questioned,  why  not  con- 
tinue to  call  it  assumption  of  risk  as  the  courts  always  have?148 

Prosser's  argument  is  certainly  valid— why  indeed  abolish  the  doctrine 
if  the  results  under  another  label  will  be  identical?  To  repeat,  duplica- 
tion of  concepts  is  unnecessary.  Duplication  tends  to  cloud  the  issues, 
confuse  the  jury,  and  provide  insubstantial  foundations  of  law.  For  ex- 
ample, in  the  recent  products  liability  case  of  Ward  v.  Hobart  Manu- 
facturing Co.,149  the  Mississippi  district  court  relied  in  part  on  the  as- 
sumption of  risk  doctrine  to  explain  its  decision.  On  appeal,  however, 
the  Fifth  Circuit  Court  of  Appeals  completely  ignored  assumption  of 
risk,  preferring  instead  to  couch  its  decision  in  terms  of  "lack  of  duty." 
It  seems  logical  that  a  better  structure  of  law  could  be  established  by  the 
use  of  a  consistent  term. 

■usSee  Prosser  §  68,  at  454-55. 
146/d  at  455. 

nTNote,   Assumption    of   Risk   Bites    the  Dust   in   Idaho    -   Almost,   6   Idaho   L. 
Rev.  119,  123    (1969). 

hsProsser  §  68,  at  456. 

i*c317  F.  Supp.  841,  852-53   (S.D.  Miss.  1970),  rev'd,  450  F.2d  1176   (5th  Cir.  1971). 


476  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Another  area  in  which  the  concepts  are  often  applied  interchange- 
ably is  that  which  involves  owners  and  occupiers  of  land.  While  one 
Mississippi  case  holds  that  a  licensee  who  has  actual  knowledge  of  a 
danger  assumes  the  risk  of  that  danger,  and  "cannot  maintain  an  action 
for  an  injury  resulting  from  such  a  danger,"150  another  Mississippi  case 
grounds  its  decision  by  declaring  that  "an  owner  of  land  owes  no  duty 
to  trespassers  or  licensees  except  to  refrain  from  wilful  or  wanton  in- 
jury."151 It  appears  that  this  type  of  case  could  be  more  effectively  ra- 
tionalized under  the  single  "duty"  concept. 

In  further  reply  to  Prosser's  question  of  why  the  phrase,  assumption 
of  risk,  should  be  abolished  if  the  results  would  be  identical  under 
another  concept,  duty,  it  is  submitted  that  the  results  would  not  always 
be  identical.  Only  in  the  clearest  of  cases  in  which  the  court  could  rule 
as  a  matter  of  law  that  the  defendant  had  no  duty  would  the  results  be 
the  same  as  if  assumption  of  risk  were  applied.  In  other  close  cases  the 
change  in  results  would  be  significant.  For  example,  in  the  preceding 
section  several  cases  involving  "secondary"  or  "implied"  assumption  of 
risk  were  examined.  In  none  of  these  cases  was  the  defendant's  duty,  or 
lack  of  it,  so  clear-cut  as  to  require  a  directed  verdict.  Hence  if  assump- 
tion of  risk  were  abolished,  recovery  in  all  probability  would  have  been 
contingent  solely  upon  contributory  negligence.  This,  of  course,  is  in 
accord  with  the  intent  of  Mississippi's  comparative  negligence  statute. 

4.    Completely   Bars   Recovery   in   Comparative 
Negligence  Jurisdictions 

It  is  evident  that  most  of  the  grounds  for  criticizing  the  real  uses 
of  the  doctrine  stem  from  its  application  in  a  comparative  negligence 
jurisdiction.  The  tenuous  distinctions  between  assumption  of  risk  and 
contributory  negligence  have  been  examined.  Unfortunately,  such  dis- 
tinctions tend  to  produce  completely  diverse  results.  It  does  not  seem 
equitable  to  allow  partial  relief  to  a  person  "who  has  been  so  negligent 
as  not  to  discover  his  peril  at  all,"  yet  absolutely  bar  recovery  to  one 
"who  has  at  least  exercised  proper  care  in  that  respect,  but  has  made  a 
mistake  in  judgment  in  proceeding  to  encounter  the  danger  after  it  is 
known."152  It  is  possible  to  reroute  the  operation  of  the  doctrine,  at  least 
in  its  secondary  sense,  around  a  theory  of  reasonableness.    For  example, 

isoMcDonald  v.  Wilmut  Gas  &  Oil  Co.,  180  Miss.  350,  360,  176  So.  395,  396-97 
(1937) . 

isiWest  v.  Williams,  245  So.  2d  591,  592  (Miss.  1971) ,  citing  Roberts  v.  Mississippi 
Power  &  Light  Co.,  193  Miss.  627,  638,  10  So.  2d  542,  544    (1942) . 

i52Prosser  §  68,  at  457. 


1973]  COMMENTS  477 

if  a  party  voluntarily  encounters  a  known  risk,  yet  has  a  reasonable  al- 
ternative, he  has  acted  unreasonably  and  is  thus  contributorily  negligent. 
On  the  other  hand,  if  he  has  no  reasonable  alternative,  he  has  assumed 
no  risk.153  Hence  implied  assumption  of  risk  situations  could  be  re- 
classified   under    contributory    negligence. 

B.  Alternatives 

In  the  primary  sense,  assumption  of  risk  is  contractual.  The  parties 
can  expressly  agree,  in  advance,  that  the  plaintiff  will  assume  a  particular 
risk.  In  the  secondary  sense,  assumption  of  risk  is  implied.  In  this  event, 
the  plaintiff,  by  words  or  conduct,  implies  that  he  will  assume  the  risk. 
If,  therefore,  assumption  of  risk  were  to  be  abolished,  should  it  be  com- 
pletely abolished,  or  should  express  assumption  of  risk  be  retained? 

It  is  not  difficult  to  understand  why  assumption  of  risk  in  the  secon- 
dary sense  would  be  the  first  to  go.  This,  of  course,  is  the  area  in  which 
the  doctrines  of  assumption  of  risk  and  contributory  negligence  are  often 
confused.  By  abolishing  assumption  of  risk  in  the  secondary  sense,  the 
courts  would  in  effect  be  recognizing  that  if  a  plaintiff  unreasonably 
places  himself  in  a  dangerous  position,  he  is  contributorily  negligent,  but 
if  he  acts  reasonably,  he  has  not  assumed  a  risk.  Abolishing  this  type  of 
assumption  of  risk  would  appear  to  satisfy  the  intent  of  the  comparative 
negligence  statute. 

Assuming  that  implied  assumption  of  risk  were  abolished,  should 
express  assumption  of  risk  also  be  abolished?  Ordinarily  express  assump- 
tion of  risk  is  established  by  contract.  The  agreement  usually  provides 
that  the  defendant  will  not  be  liable  for  injuries  to  the  plaintiff  in  certain 
circumstances.154  Generally  speaking,  such  contracts  are  valid  unless  the 
agreement  violates  public  policy.155  For  example,  the  courts  have  invali- 

i53Comment,  Distinctions  Between  Assumption  of  Risk  and  Contributory  Negli- 
gence, 23  Wash.  &  Lee  L.  Rev.  91,  100  (1966),  which  states  that  "it  is  never  reason- 
able knowingly  to  encounter  a  danger  when  there  is  a  reasonable  alternative;  and 
when  there  is  no  reasonable  alternative,  there  cannot  be  any  voluntary  choice,  a  for- 
tiori, no  assumption  of  risk."  Accord,  Note,  Assumption  of  Risk  Bites  the  Dust  in 
Idaho  -  Almost,  6  Idaho  L.  Rev.  119,  124-25  (1969),  which  states  that  "when  the 
plaintiff  puts  himself  in  a  position  unreasonably,  he  is  contributorily  negligent,  but 
...if  he  has  acted  reasonably,  he  assumed  no  risk."  See  Rice,  supra  note  77,  at  341, 
where  it  is  stated  that  "venturesomeness  is  clearly  classifiable  as  contributory  negli- 
gence when  the  risk  taken  would  not  have  been  encountered  by  a  reasonably  prudent 
man." 

154RESTATEMENT   (Second)    of  Torts  §  496  B,  comment  a  at  565    (1965)  . 
155/d.  §  496  B,  comment  e  at  567;  James,  Assumption  of  Risk,  61  Yale  L.J.  141, 
163    (1952). 


478  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

dated  agreements  between  employer  and  employee,156  agreements  in 
which  there  has  been  a  disparity  of  bargaining  power  between  the  par- 
ties,157 and  agreements  in  which  the  gravity  of  risk  was  significantly  dis- 
proportionate to  the  benefits  from  creating  it.158  As  a  practical  matter,  if 
a  plaintiff  expressly  assumes  a  risk,  he  has  done  nothing  more  than  re- 
lieve the  defendant  from  a  duty.  Hence,  if  express  assumption  of  risk  is 
abolished,  it  would  be  replaced  by  the  "duty"  concept.  The  consequences 
of  such  a  change  have  been  discussed.  It  is  interesting  to  note  the  views 
of  the  New  Jersey  Supreme  Court  when  faced  with  the  decision  of 
whether  to  retain  express  assumption  of  risk.  The  court  had  preserved 
express  assumption  of  risk  in  1959,159  but  when  confronted  with  the  issue 
again  in  1963,  declared: 

In  Meistrich  we  said  the  terminology  of  assumption  of  the  risk 
should  not  be  used  when  it  is  projected  in  its  secondary  sense, 
i.e.,  that  of  contributory  negligence  ....  We  thought,  however, 
that  "[pjerhaps  a  well-guarded  charge  of  assumption  of  risk  in 
its  primary  sense  will  aid  comprehension."  .  .  .  Experience, 
however,  indicates  the  term  "assumption  of  risk"  is  so  apt  to 
create  mist  that  it  is  better  banished  from  the  scene.  We  hope 
we  have  heard  the  last  of  it.  Henceforth  let  us  stay  with  "negli- 
gence" and  "contributory  negligence."160 

The  court  thus  disposed  of  both  express  and  implied  assumption  of 
risk. 

In  summary,  assumption  of  risk  appears  to  be  an  "inaptly  trans- 
planted defense"— particularly  in  comparative  negligence  jurisdictions 
such  as  Mississippi.  Application  of  the  doctrine  is  neither  consistent  nor 
predictable,  and  often  results  in  regrettable  decisions.  As  a  result,  the 
doctrine  adds  little  more  than  confusion  to  contemporary  law.  The 
Mississippi  Supreme  Court  has  manifested  a  reluctance  to  apply  the  doc- 
trine.161 In  order  to  eliminate  the  confusion  and  delicate  distinctions 

^Restatement   (Second)    of  Torts,  §  496  B,  comment  /  at  567. 

157/d.  §  496  B,  comment  ;'  at  569. 

i58james,  supra  note  155,  at  163. 

i59Meistrich  v.  Casino  Arena  Attractions,  Inc.,  31  N.J.  44,  155  A.2d  90    (1959)  . 

icoMcGrath  v.  American  Cyanamid  Co.,  41  N.J.  272,  196  A.2d  238,  240-41    (1963)  . 

leiSee  Shurley  v.  Hoskins,  271  So.  2d  439  (Miss.  1973) ;  Canton  Broiler  Farms,  Inc. 
v.  Warren,  214,  So.  2d  671  (Miss.  1968)  ;  White  v.  Mississippi  Power  &  Light  Co.,  196 
So.  2d  343  (Miss.  1967) ;  Dendy  v.  City  of  Pascagoula,  193  So.  2d  559  (Miss.  1967)  ; 
Wallace  v.  J.  C.  Penney  Co.,  236  Miss.  367,  109  So.  2d  876    (1959)  . 

The  court  has  recently  declared: 

To  apply  the  assumption  of  risk  doctrine  because  of  the  negligence  of  the 

plaintiff  without  regard   to   the   degree   of  care   exercised   by   the   defendant 

would,  in  many  instances,  be  equivalent  to  barring  the  plaintiff's  recovery  in 

cases  where  the  defendant  was  negligent  or  exercised  a  degree  of  care  inferior 

to  that  required   by  law. 


1973]  COMMENTS  479 

between  assumption  of  risk  and  contributory  negligence,  the  assumed 
risk  doctrine  should  be  completely  abolished.  Future  problems  should 
be  discussed  with  reference  to  the  concepts  of  contributory  negligence 
and  duty.  Only  then  will  Mississippi  jurisprudence  exhibit  the  true  in- 
tent  of  its   damage-apportionment   statute. 

David  E.  Wilder 


Shurley  v.  Hoskins,  supra  at  443-44.  This  statement  by  the  court  is  extremely  inter- 
esting, for  does  not  assumption  of  risk  always  bar  the  plaintif's  recovery  in  cases 
where  the  defendant  was  negligent  or  exercised  a  degree  of  care  inferior  to  that  re- 
quired by  law?  Has  the  court  not  held  before  that  assumption  of  risk  is  a  bar  to 
recovery  even  if  the  defendant  were  guilty  of  gross  negligence?  It  is  submitted  that 
were  the  court  to  follow  the  instant  reasoning  in  all  assumption  of  risk  cases,  the 
doctrine  would  have  no  future  in  Mississippi. 


THE  MISSISSIPPI  IMPLIED  CONSENT  ACT: 
ADMINISTRATIVE  AND  CRIMNAL  PROCEDURES 

I.     Introduction 

Following  the  lead  of  48  other  states,*  Mississippi  enacted  an  Im- 
plied Consent  Statute2  effective  April  1,  1972,  which  implies  the  consent 
of  motorists  to  chemical  testing  of  the  motorist's  blood  for  alcoholic 
content.  If  the  motorist  refuses,  his  license  will  be  suspended.  By  "im- 
plying*' the  consent  of  motorists  to  chemical  testing,  the  legislature  is 
attempting  to  increase  the  convictions  for  drunken  driving  by  the  use 
of  accurate,  reliable  scientific  evidence.  If  the  test  is  refused,  the  ad- 
ministrative penalty  of  license  suspension  will  at  least  remove  the 
dangerous  driver  from  the  road.  Federal  legislation  establishing  the 
power  to  reduce  highway  funds  to  the  states  unless  certain  federal  safety 
requirements  were  met  was  also  instrumental  in  the  passage  of  the  Mis- 
sissippi Act.3    The  aim  of  these  sanctions  is  to  deter  drunken  driving 

iAla.  Code  tit.  36,  §  154  (Supp.  1971) ;  Alaska  Stat.  §  28.35.031  (1970)  ;  Ariz. 
Rev.  Stat.  Ann.  §  28-691  (Supp.  1969-70) ;  Ark.  Stat.  Ann.  §  75-1045  (Supp.  1969)  ; 
Cal.  Vehicle  Code  §  13353  (1971);  Colo.  Rev.  Stat.  Ann.  §  13-5-30  (Supp.  1971); 
Conn.  Gen.  Stat.  Ann.  §  14-337-6  (1970) ;  Fla.  Stat.  Ann.  §  322.261  (1968)  ;  Ga. 
Code  Ann.  §  68-1625.1  (Supp.  1972) ;  Hawaii  Rev.  Stat.  §  286-151  (1968)  ;  Idaho 
Code  §  49-352  (1967);  Ind.  Ann.  Stat.  §  47-2003c  (Supp.  1972)  ;  Iowa  Code  Ann. 
§  32113.3  (Supp.  1972);  Kan.  Stat.  Ann.  §  8-1001  (1964);  Ky.  Rev.  Stat.  Ann.  § 
186.565  (1969);  La.  Rev.  Stat.  §  32.661  (Supp.  1973);  Me.  Rev.  Stat.  Ann.  tit.  29,  § 
1312  (Supp.  1972)  :  Md.  Ann.  Code  art.  66i/2  §  6-205.1  (Cum.  Supp.  1972)  ;  Mass.  Gen. 
Laws  Ann.  ch.  90,  §  24  (Supp.  1972);  Mich.  Comp.  Laws  Ann.  §  257.625a  (Supp.  1972): 
Minn.  Stat.  Ann.  §  169.123  (Supp.  1973) ;  Mo.  Ann.  Stat.  §  564.441  (Supp.  1972) ; 
Mont.  Rev.  Codes  Ann.  §  32-2142.1  (Supp.  1971) ;  Neb.  Rev.  Stat.  §  39-727.03  (I960)  ; 
Nev.  Rev.  Stat.  §  484.385  (1971)  ;  N.H.  Rev.  Stat.  Ann.  §  262-A:  69-a  (Supp.  1972)  ; 
N.J.  Stat.  Ann.  §  39:4-50.2  (Supp.  1972) ;  N.M.  Stat.  Ann.  §  64-22-2.6  (1972) ;  N.Y. 
Veil  &  Trap.  Law  §  1194  (Supp.  1972)  ;  N.C.  Gen.  Stat.  §  20-16.2  (Supp.  1972)  ;  N.D. 
Cent.  Code  §  39-20-01  (1972);  Ohio  Rev.  Code  Ann.  45  11.19.1  (Supp.  1972); 
Okla.  Stat.  Ann.  tit.  47,  §  751  (Supp.  1972)  ;  Ore.  Rev.  Stat.  §  483-634  (1971)  ; 
Pa.  Stat.  Ann.  75.624.1  (1971);  R.I.  Gen.  Laws  Ann.  §  31-27-2.1  (1969);  S.C.  Code 
Ann.  §  46-344  (Supp.  1972) ;  S.D.  Com.  Laws  Ann.  §  32-23-10  (Supp.  1972) ;  Tenn. 
Code  Ann.  §  59-1045  (Supp.  1972)  ;  Tex.  Penal  Code  art.  802f  (Supp.  1972) ;  Utah 
Code  Ann.  §  41-6-44.10  (1970)  ;  Vt.  Stat.  Ann.  tit.  23,  §  1188  (1967)  ;  Va.  Code  Ann. 
§  18.1-55.1  (Supp.  1972);  Wash.  Rev.  Code  Ann.  §  46.20.308  (1970);  W.  Va.  Code 
Ann.  §  17C-5A-1  (Supp.  1972);  Wis.  Stat.  Ann.  §  343.305  (Supp.  1973)  ;  Wyo.  Stat. 
Ann.  §  31-247.2    (Supp.  1971)  . 

-Miss.  Code  Ann.  §  8175-01  to  -26  (Supp.  1972).  This  section  will  appear  in  the 
new  Code  of  1972  as  Miss.  Code  Ann.  §  63-11-1   to  -47    (1972). 

sThe  most  probable  motivation  for  the  enactment  of  the  Mississippi  Implied  Con- 
sent Act  is  federal  legislation  entitled  Highway  Safety  Act  of  1966,  Pub.  L.  No.  89- 

480 


1973]  COMMENTS  481 

and  decrease  its  destruction  of  people  and  property.1  This  comment  will 
focus  on  the  effect  of  the  Mississippi  Act  in  deterring  drunken  driving. 
Certain  Mississippi  procedures  will  be  examined  in  light  of  constitutional 
requirements,  but  a  general  discussion  of  the  constitutionality  of  implied 
consent  to  chemical  testing  will  not  be  undertaken,5  since  no  such  statute 

564,  Title  I,  §  101,  80  Stat.  731.  This  act  authorizes  the  Secretary  of  Transportation 
to  require  the  states  to  comply  with  certain  mandates.  The  Highway  Safety  Act  of 
1966  further  authorizes  the  Secretary  of  Transportation  to  withhold  up  to  10  percent 
of  a  state's  federal  highway  funds  if  the  state  does  not  comply  with  the  federal  safety 
standards  promulgated  pursuant  to  the  act.  The  act  also  requires  the  governor 
of  each  state  to  establish  an  agency  with  the  organization  and  power  to  carry  out 
the  safety  programs  initiated.  This  agency  in  Mississippi  is  entitled  the  Governor's 
Highway  Safety  Commission. 

On  June  27,  1967,  the  Secretary  of  Transportation,  pursuant  to  the  power  grant- 
ed him  by  the  Highway  Safety  Act  of  1966,  issued  Highway  Safety  Program  Standard 
No.  8.  It  required  the  states  to  enact  legislation  establishing  implied  consent  of 
motorists  to  chemical  testing  for  intoxication. 

On  July  18,  1972,  the  Secretary  of  Transportation  issued  revised  standards.  23 
C.F.R.  §  242.6.  (1972) .  This  revised  standard  contains  four  requirements  which  the 
Mississippi  Act  does  not  meet.  They  are: 

(1)  It  shall  be  unlawful  to  drive  while  .10  percent  of  the  blood  content  is  alco- 
hol. The  Mississippi  Act  simply  establishes  a  presumption  of  intoxication  by  the  alco- 
holic content  of  the  blood.  See  infra  pp.  502-03. 

(2)  Law  enforcement  officials  shall  be  empowered  to  make  lawful  misdemeanor 
a i  rests  without  a  warrant  for  traffic  violations  not  committed  in  the  officer's  pres- 
ence. In  Mississippi,  misdemeanor  arrests  for  violations  not  committed  in  the  ar- 
resting officer's  presence  can  be  made  only  with  a  warrant.  See  infra  pp.  485-86,  499. 

(3)  The  administrative  penalty  for  refusing  to  submit  to  the  chemical  test  shall 
be  revocation  of  the  driver's  license  for  a  minimum  of  6  months.  The  Mississippi 
Act,  however,  only  suspends  the  driver's  license  for  3  months.  See  infra  p.  492. 

(4)  The  states  shall  establish  a  preliminary  test  which  may  be  given  before 
the  motorist  is  under  arrest.  The  Mississippi  act  does  provide  for  a  preliminary, 
unofficial  test,  but  it  may  not  be  given  until  the  driver  is  placed  under  arrest. 
See  infra  pp.  505-06. 

*For  example,  the  annual  death  rate  on  the  highways  in  recent  years  has  been 
between  50  and  60  thousand.  Alcohol  has  been  involved  in  approximately  one-half  of 
these  fatalities.  U.S.  Dep't  of  Transp.,  Highway  and  Traffic  Safety  1970  at  13 
(1971). 

sThe  two  major  cases  in  this  area  are  Schmerber  v.  California,  384  V.S.  757 
(1966)  and  Breithaupt  v.  Abrams,  352  U.S.  432  (1957)  . 

In  Breithaupt,  the  Court  held  that  the  taking  of  blood  from  an  unconscious 
driver  was  not  violative  of  due  process  standards.  While  not  considering  the  Kansas 
implied  consent  statute,  the  Court  seemed  to  recognize  its  validity.  352  U.S.  at  435 
n.2   (1957). 

In  Schmerber,  the  Court  went  a  step  further  than  Breithaupt  by  holding  that 
the  taking  of  a  driver's  blood  by  force  over  his  objection  was  a  search  under  the 
fourth  amendment  but  was  reasonable  since  probable  cause  for  arrest  existed  and 
the  warrantless  search  was  incident  to  lawful  arrest.  More  important  was  the  Court's 


482  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

has  been  adjudged  unconstitutional.6 

For  the  purposes  of  this  comment  the  Act  will  be  analyzed  through 
five  sections: 

(1)  When  the  Act  can  be  invoked; 

(2)  How  the  Act  is  to  be  invoked; 

(3)  Refusal  to  take  the  test; 

(4)  The  test  itself;  and 

(5)  Consent  to  the  test. 

I.    When  The  Act  Can  Be  Invoked 

Section  8175-04  implies  the  consent  of  "any  person  who  operates  a 
motor  vehicle  upon  the  public  highways,  public  roads  and  streets"  to 
a  chemical  test  for  alcohol  intoxication.  The  use  of  the  word  "operate" 
appears  to  allow  a  broader  use  of  the  Act  than  some  states  which  require 

holding  that  the  driver's  fifth  and  sixth  amendment  rights  were  not  violated.  Relying 
on  the  "testimonial"  characterization  of  the  scope  of  the  fifth  amendment,  the  Court 
held  that  the  taking  of  blood  did  not  violate  the  driver's  privilege  against  self-in- 
crimination. Since  the  driver  did  not  have  the  right  to  refuse  the  blood  test,  there 
was  no  right  to  counsel  under  the  sixth  amendment. 

It  seems  clear  that  other  methods  of  testing  for  alcohol  such  as  breath,  saliva, 
and  urine  are  less  invading  than  the  extraction  of  blood  and,  therefore,  will  be 
treated   the  same. 

The  police  power  of  the  state  to  imply  consent  of  motorist  to  certain  lawful  action 
was  settled  in  Hess  v.  Pawloski,  274  U.S.  352  (1927) .  The  case  upheld  a  state 
statute  providing  that  nonresident  motorists  had  impliedly  consented  to  the  appoint- 
ment of  the  state  registrar  for  service  of  process  by  their  acceptance  of  the  privilege 
of  driving  on  the  state  highways. 

For  in-depth  analysis  of  the  constitutionality  of  the  implied  consent  theory  of 
chemical  testing,  see  generally  Reeder,  Interpretation  of  Implied  Consent  Laws  by 
the  Courts,  19  Traffic  Dig.  &  Rev.  17  (Aug.  1971)  ;  Comment,  Admissibility  and 
Constitutionality  of  Chemical  Intoxication  Tests,  35  Texas  L.  Rev.  813  (1957)  ; 
Comment,  "Implied  Consent"  of  Intoxicated  Drivers  to  Submit  to  Chemical  Test  in 
Tennessee,  38  Tenn.  L.  Rev.  585,  586-88  (1971)  ;  Comment,  Driving  While  Intoxi- 
cated-Implied  Consent  Statute  in  Ohio,  20  W.  Res.  L.  Rev.  277,  282-91. 

eThe  first  implied  consent  statute  was  enacted  in  New  York.  It  was  held  un- 
constitutional in   Schutt  v.   Macduff,  205  Misc.  2d  43,   127   N.Y.S.  2d   116    (Sup.  Ct. 

1954)  .  The  statute  was  immediately  amended  to  require  arrest  before  testing  and 
further  added  procedural  requirements  for  an  administrative  hearing.  The  statute 
was  then  upheld  in  Anderson  v.  Macduff,  208  Misc.  2d  271,  143  N.Y.S.  2d  257   (Sup.  Ct. 

1955)  .  No  other  state  implied  consent  statute  has  been  held  unconstitutional. 
See,  e.g.,  Campbell  v.  Superior  Court,  106  Ariz.  542,  479  P.2d  685  (1971);  State  v. 
Berg,  76  Ariz.  96,  259  P. 2d  261  (1953)  ;  People  v.  Brown,  485  P.2d  500  (Colo.  1971) , 
cert,  denied,  404  U.S.  1007  (1972)  ;  Lee  v.  State,  187  Kan.  566,  358  P.2d  765  (1961) ; 
Blydenburg  v.  Davis,  413  S.W.2d  284  (Mo.  1967) ;  State  v.  Kroening,  274  Wis.  266, 
79  N.W.2d  810    (1956)  . 


1973]  COMMENTS  483 

that  the  motorist  actually  be  "driving"7  before  his  consent  to  a  test  is 
implied.  The  word  "drive"  connotes  the  control  of  a  vehicle  in  motion, 
while  a  vehicle  could  be  "operated"  without  actually  moving;8  however, 
section  8175-09  further  provides  that  a  law  officer  is  required  to  inform 
the  motorist  of  the  consequences  of  refusing  the  test  when  "the  arresting 
officer  has  reasonable  grounds  and  probable  cause  to  believe  such  person 
to  have  been  driving  a  motor  vehicle.  .  .  ."  This  possible  ambiguity  in 
section  8175-09  is  regretable.  If  the  license  suspension  penalty  is  available 
only  for  motorists  who  were  "driving,"  the  fact  that  the  Act  implies  the 
consent  of  those  who  also  "operate"  a  vehicle  is  a  mandate  without  a 
penalty.  In  Farley  v.  State,9  the  Mississippi  Supreme  Court  allowed  an 
indictment  to  proceed  on  the  allegation  that  the  defendant  "operated" 
a  vehicle  even  though  the  statute  in  question  referred  only  to  "driving" 
a  vehicle.10  It  is  not  clear  whether  the  court  was  incorporating  the  more 
inclusive  meaning  of  "operate"  or  merely  holding  that  the  word  was 
synonymous  with  the  word  "driving,"  which  connotes  movement  of  the 
car.  While  the  defendant  in  Farley  was  never  seen  moving  the  vehicle, 
the  court  apparently  assumed  that  it  had  been  moved,  relying  on  the 
fact  that  the  vehicle  was  easily  cranked  the  morning  following  the  arrest. 
However,  since  the  validity  of  a  misdemeanor  arrest  is  founded  upon 
commission  in  the  officer's  presence,11  the  motion  of  the  vehicle  must  not 
have  been  a  requirement  for  the  offense  of  "driving"  while  intoxicated. 

The  uncertain  meaning  of  the  words  "driving"  and  "operating" 
produces  another  ambiguity  in  the  Act.  Even  if  section  8175-09  is  inter- 
preted to  mean  "operation"  of  a  vehicle,  the  more  restrictive  word 
"drive"  is  again  encountered  in  section  8175-04.  This  section  of  the  Act 
makes  it  unlawful  to  "drive"  a  vehicle  while  intoxicated  and  makes  no 
mention  of  "operation"  of  a  vehicle.  If  the  word  "drive"  is  given  a  more 
restrictive  meaning  than  the  implied  consent  section  8175-09,  the  result 
would  be  to  require  the  test  in  some  circumstances  for  which  section 
8175-04  provides  no  criminal  penalty.  The  state  legislature  should  clarify 
these  ambiguities  by  adding  the  words  "or  operate"  wherever  the  word 
"drive"  is  used. 

TE.g.,  Cal.  Vehicle  Code  §  13353  (1971) ;  Colo.  Rev.  Stat.  Ann.  §  13-5-30 
(Supp.  1971) . 

sin  Ferguson  v.  State,  198  Miss.  825,  828,  23  So.  2d  687,  688  (1945) ,  the  Mississippi 
Supreme  Court  said,  "One  who  drives  a  motor  vehicle  is,  of  course,  operating  it, 
though  he  may  operate  a  motor  vehicle  without  driving  it."  See  also,  State  v.  Joswick, 
233   A.2d    154    (Del.   1967)  ;    McDuell  v.  State,  231    A.2d  265,  267    (Del.   1967)  . 

9251  Miss.  497,  170  So.  2d  625    (1965) . 

io Act  of  Apr.  6,  1938,  ch.  200,  [1938]  Gen.  Laws  Miss.  444  (repealed  1972) ;  Act 
of  Apr.  9,  1952,  ch.  262,  [1952]  Gen.  Laws  Miss.  293    (repealed  1972)  . 

uSee  note  31   infra. 


484  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Even  if  the  Act  can  be  construed  to  include  the  "operation"  of  a 
vehicle,  such  interpretation  is  not  the  full  extension  of  implied  consent. 
Some  states  have  extended  the  applicability  of  implied  consent  to  include 
an  "attempt  to  operate."12  This  wording  would  extend  the  Act's  coverage 
to  unconscious  inebriates  found  in  automobiles.  It  is  doubtful  if  the 
Act's  present  coverage  could  be  extended  to  cover  such  unconscious 
motorists. 

Although  some  states  extend  the  coverage  of  their  respective  implied 
consent  acts  to  any  location  in  the  state,13  most  states  limit  its  applica- 
bility to  public  roads.14  Mississippi  has  limited  its  Act  to  public  roads 
and  highways,15  while  making  it  a  crime  to  drive  while  intoxicated  any- 
where in  the  state.16  In  Farley  v.  State,17  the  Mississippi  Supreme  Court 
held  that  driving  a  vehicle  while  intoxicated  was  a  crime  whether  on 
public  or  private  roads.  Farley  was  decided  under  section  8174  of  the 
Mississippi  Code  which  provides  in  part:  "It  is  unlawful.  .  .  for  any  per- 
son. .  .who  is  under  the  influence  of.  .  .intoxicating  liquor.  .  .to  drive 
any  vehicle  within  this  state."ls  This  statute  was  repealed19  and  replaced 
in  part  by  section  81 75-04. 20  The  pertinent  language  in  section  8175-04 
remained  essentially  unchanged;  therefore,  the  interpretation  in  Farley 
that  "within  this  state"  includes  both  public  roads  and  private  roads  is 
still  appropriate.  Although  it  is  unlawful  to  drive  while  intoxicated  on 
either  public  or  private  roads,  section  8175-09  implies  the  motorist's  con- 
sent only  for  "any  offense.  .  .while  the  person  was  driving.  .  .on  the 
public  highways,  public  roads  and  streets  of  this  state.  .  .  ." 


usee,  e.g.,  Me.  Rev.  Stat.  Ann.  tit.  29,  §  1312  (Supp.  1972) ;  Vt.  Stat.  Ann. 
tit.  23,  §  1188  (1967)  .  The  reasonable  interpretation  of  the  Mississippi  Act  would 
not  allow  officers  to  invoke  the  Act  if,  for  example,  they  were  called  to  a  tavern  or 
bar  to  restrain  an  inebriate  from  driving.  He  would  have  to  at  least  manipulate 
some  of  the  controls  of  a  vehicle  before  he  could  be  deemed  "operating"  a  motor 
vehicle.  But  in  State  v.  Pritchett,  173  A.2d  886  (Del.  1961)  ,  the  Delaware  court  held 
that  the  defendant  was  guilty  of  "operating"  a  vehicle  while  intoxicated  because 
the  vehicle  was  running,  the  lights  were  on,  and  the  defendant  was  asleep  in  the 
driver's  seat. 

"E.g.,  Fla.  Stat.  Ann.  §  322.261    (1968) ;  Ky.  Rev.  Stat.  Ann.  §  186.565    (1968) . 

i4£.g.,  Ark.  Stat.  Ann.  §  75-1045  (Supp.  1969) ;  Tex.  Penal  Code  art.  802f 
(Supp.  1972). 

"Miss.  Code  Ann.  §  8175-09  (Supp.  1972) . 

i6/d.  §  8175-04. 

17251   Miss.  497,  170  So.  2d.  625    (1965)  . 

isAct  of  Apr.  6,  1938,  ch.  20,  [1938]  Gen.  Laws  Miss.  444  (repealed  1972;  Act 
of  Apr.  9,  1952,  ch.  262,  [1952]  Gen.  Laws  Miss.  293   (repealed  1972)    (emphasis  added) . 

"[1971]  Gen.  Laws  Miss.,  ch.  515,  §  28    (effective  April  1,  1972)  . 

20 Miss.  Code  Ann.  §  8175-04    (Supp.  1972)  . 


1975]  COMMENTS  485 

II.    How  the  Act  is  Invoked 

For  the  Act  to  be  invoked,  the  arresting  officer  must  satisfy  two  re- 
quirements.21 First,  he  must  lawfully  arrest  the  driver.  Second,  the  arrest 
must  be  for  an  offense  arising  from  acts  committed  while  driving  a  motor 
vehicle  under  the  influence  of  intoxicating  liquor.  The  specific  use  of 
"intoxicating  liquor"  suggests  that  consent  to  a  chemical  test  is  not  im- 
plied under  the  Act  for  one  who  is  incapacitated  due  to  drugs  other  than 
liquor.  The  Act  further  requires  that  only  the  arresting  officer  can  meet 
these  requirements.22 

While  some  states  require  that  the  arrest  be  for  the  offense  of  drunk 
driving,23  most  states  only  require  that  there  be  a  lawful  arrest  for  any 
offense  committed  while  driving  under  the  influence  of  alcohol.24  By 
using  the  language  "any  offense"  in  its  statute,  Mississippi  appears  to 
follow  the  majority  on  this  point.  Since  most  arrests  of  drunken  drivers 
are  initially  for  reckless  driving,  the  majority  view  is  the  better  view, 
as  it  allows  the  officer  to  observe  the  driver's  conduct,  speech,  and 
smell  of  his  breath,  and  thereby  establish  reasonable  grounds  to  believe 
the  driver  is  intoxicated.25 

A  few  states  have  removed  the  arrest  requirement  from  their  implied 
consent  act.26  Although  this  increased  intrusion  of  privacy  might  be 
questionable,  they  do  require  that  probable  cause  for  arrest  exist  before 
the  test  can  be  offered.  This  does  not  appear  to  expand  the  scope  of  the 
implied  consent  to  any  situations  which  the  Mississippi  Act  does  not 
cover,  since  an  arrest  would  be  proper  if  probable  cause  existed. 

Since  the  Mississippi  implied  consent  statute  is  not  invoked  until 
there  is  a  "lawful  arrest,"27  a  problem  could  arise  when  an  officer  reaches 
the  scene  of  an  accident  and  suspects  that  a  driver  is  intoxicated.  Since 
drunken  driving  is  a  misdemeanor  in  Mississippi,  a  lawful  arrest  without 
a  warrant  can  not  be  made  unless  a  crime  takes  place  in  the  officer's 
presence.28  Some  states  meet  this  problem  by  allowing  officers  to  arrest 
if  they  have  reasonable  grounds  to  believe  the  motorist  was  operating 

21/d.  §  8175-09. 

22/d. 

23£.g.,  Me.  Rev.  Stat.  Ann.  tit.  29,  §  1312   (Supp.  1972) . 

24£.g.,  Ala.  Code  tit,  36,  §  154  (Supp.  1971) ;  Ark.  Stat.  Ann.  §  75-1045  (Supp. 
1969). 

MSee,  e.g.,  Clancy  v.  Kelly,  7  App.  Div.  2d  820,  180  N.Y.S.2d  923,  924   (1958) . 

26£.gv  Ind.  Code  Ann.  §  47-2003c  (Burns  Supp.  1970) ;  Minn.  Stat.  Ann.  §  169. 
123    (Supp.  1973)  .  See  also,  U.S.  Dep't  of  Transp.  standards,  supra  note  4. 

MSee  Okla.  Stat.  Ann.  tit.  47,  §  751    (Supp.  1972) . 

**E.g.,  Butler  v.  State,  135  Miss.  885,  101  So.  193  (1924) ;  Letow  v.  United  States 
Fidelity  Co.,  120  Miss.  763,  83  So.  81    (1919)  . 


486  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

a  vehicle  while  intoxicated.29  While  some  courts  have  liberally  construed 
the  scope  of  lawful  misdemeanor  arrests  for  drunken  driving,30  this 
should  be  specifically  allowed  by  the  statute.31  Since  the  Mississippi  sta- 
tute is  based  only  on  the  alcohol  content  at  the  time  of  testing,32  the 
time  it  takes  an  officer  to  reach  the  scene  plus  the  time  it  takes  him  to 
acquire  an  arrest  warrant  will  allow  the  dissipation  of  much  of  the  al- 
cohol in  the  driver's  body.33  Furthermore,  the  state  faces  the  loss  of  part 
of  its  federal  highway  funds  if  it  does  not  provide  for  warrantless  mis- 
demeanor arrests  for  traffic  violations  not  committed  in  the  arresting 
officer's  presence.34 

Once  the  driver  is  under  lawful  arrest  and  the  officer  has  reasonable 
grounds  to  believe  that  the  suspect  was  driving  while  intoxicated,  the 
officer  may  request  the  driver  to  submit  to  a  chemical  test  to  determine 
the  alcoholic  content  of  the  driver's  blood.35  The  Mississippi  statute 
provides  for  chemical  tests  of  blood,  breath,  or  urine,36  but  the  statute 
does  not  clearly  indicate  whether  the  arresting  officer  or  the  driver 
determines  which  of  the  tests  is  to  be  applied.37  Although  most  states 

29See  Va.  Code  Ann.  §  19.1-100    (1950) . 

30jE.g.,  State  v.  Williams,  98  Ohio  App.  513,  130  N.E.2d  395  (1954).  See  also 
Comment,  Driving  While  Intoxicated— Implied  Consent  in  Ohio,  supra  note  5,  at  293. 

3iThe  Mississippi  Supreme  Court  has  consistently  required  strict  adherence 
to  the  rule  that  misdemeanor  arrest  by  officials  be  only  for  crimes  committed  in  the 
officer's  presence  or  by  warrant.  E.g.,  Butler  v.  State,  212  So.  2d  573  (Miss.  1968) ; 
Smith  v.  State,  208  So.  2d  746  (Miss.  1968) .  See  also  Miss.  Code  Ann.  §  2470 
(Supp.   1972). 

32Miss.  Code  Ann.  §  8175-15    (Supp.  1972). 

33By  specifying  the  use  of  the  alcohol  content  of  the  blood  at  the  time  of  testing, 
the  Mississippi  Act  cannot  be  interpreted  to  allow  extrapolation.  Since  the  offense  is 
for  driving  while  intoxicated,  some  states  use  the  estimated  alcoholic  content  at  the 
time  of  arrest  and  not  the  actual  content  upon  testing.  The  estimated  alcohol 
content  is  computed  by  the  use  of  standard  dissipation.  It  has  been  determined  that 
alcohol  in  the  blood  dissipates  at  the  rate  of  .015  percent  per  hour.  By  increasing  the 
percentage  found  in  the  body  at  the  time  of  testing  by  the  estimated  amount  of 
dissipation,  the  alcohol  percentage  at  the  time  of  arrest  may  be  calculated.  The 
formula  is  (percentage  of  sample)  +  (.015  x  the  number  of  hours)  .  R.  Erwin, 
Defense  Of  Drunk  Driving  Cases  ch.  15  §  15.01,  pt.  6,  at  8  (3d  ed.  1972)  [hereinafter 
cited  as  Erwin,  Drunk  Driving  Cases]. 

z*See  note  3  supra. 

35Miss.  Code  Ann.  §  8175-09  (Supp.  1972) . 

36/rf.  §  8175-16. 

37/d.  §  8175-09,  provides,  in  part,  that  "the  test  shall  be  administered  at 
the  direction  of  .  .  .  the  arresting  officer."  This  does  not  specifically  grant  the 
officer  the  right  to  choose  which  test  shall  be  given.  It  should  be  noted  that 
section  8175-09,  in  providing  for  an  unofficial  preliminary  test,  refers  to  the 
"official  chemical  analysis  test  of  his  breath."  But  in  section  8175-11,  the  Act 
provides    for    the    penalty    of    refusing    "to    submit    to    a    chemical    test    designated 


1973]  COMMENTS  487 

have  interpreted  language  similar  to  that  in  the  Mississippi  Act  to  give 
the  choice  of  tests  to  the  law  enforcement  official,38  at  least  one  state 
has  overturned  convictions  because  the  defendant  was  not  given  his  choice 
of  tests.39  If  the  defendant  is  allowed  to  choose  which  test  he  will  be 
given,  he  may  be  able  to  frustrate  the  statute  by  requesting  a  test  which 
is  unavailable.  It  would  be  wasteful  and  economically  unfeasible  to  re- 
quire each  law  enforcement  agency  to  be  prepared  to  administer  every 
type  of  test. 

While  the  theory  of  implied  consent  is  to  enable  law  enforcement 
agencies  to  acquire  convincing  scientific  evidence  of  intoxication,  the 
Mississippi  Act  requires  neither  that  the  test  be  given  nor  grants  the  de- 
fendant the  right  to  one.40  A  Mississippi  case  decided  prior  to  the  Im- 
plied Consent  Act  delineated  the  circumstances  which  would  entitle  a 
defendant  to  a  chemical  test.  In  Scarborough  v.  State41  the  defendant 
was  arrested  for  driving  while  intoxicated  and  his  request  for  a  blood 
test  was  refused.  He  was  not  allowed  to  make  a  telephone  call  for  two 
hours.  The  Mississippi  Supreme  Court  said: 

We  announce  as  a  constitutional  rule  that  holding  a  pri- 
soner incommunicado  and  unreasonably  denying  or  ignoring 
his  request  for  assistance  to  have  tests  made  amounts  to  a  denial 
of  due  process  of  law  by  thus  suppressing  possible  evidence 
favorable  to  the  defendant,  provided  the  defendant  can  show: 

1.  Request  to  have  a  test  made  at  his  own  expense. 

2.  Cooperation  with  officers  so  that  no  reasonable  appre- 
hension of  difficulty  in  handling  the  prisoner  exists  so  the  test 
can  be  made  consistent  with  safe  custody. 

by  the  law  enforcement  agency.  .  .  ."  This  seems  to  indicate  that  the  officer 
designates  which  test  the  motorist  must  take  and  the  motorist  may  not  evade  the 
administrative  penalty  by  offering  to  take  a  type  of  test  other  than  that  designated  by 
the  arresting  officer.  However,  a  statutory  reference  service  catergorizes  Mississippi  as 
a  state  where  only  a  breath  test  may  be  offered  if  the  motorist  refuses  all  types 
of  tests  and  requests  the  breath  test.  International  Ass'n  of  Chiefs  of  Police, 
Legislative  Research  Digest  Comp.  6,  at  17  (1972) . 

38j?.g.,  Lee  v.  State,  187  Kan.  566,  358  P.2d  765,  769  (1961);  Timm  v.  State, 
110  N.W.2d  359,  362-63  (N.D.  1961).  The  Uniform  Vehicle  Code  §  6-205.1  recommends 
that:  "The  law  enforcement  official  shall  designate  which  of  the  tests  shall  be  ad- 
ministered. However,  the  motorist  will  have  the  option  to  demand  that  only  a 
breath  test  be  administered." 

39Bean  v.  State,  12  Utah  2d  76,  362  P.2d  750  (1961) ;  Ringwood  v.  State,  8  Utah 
2d  287,  333  P.2d  943    (1959) . 

40This  is  evident  not  because  the  Act  does  not  grant  the  motorist  a  right  to 
take  a  test,  but  also  because  the  Act  provides  a  penalty  for  conviction  when  no  test 
was  given.  Miss.  Code  Ann.  §  8175-07    (Supp.  1972) . 

41261  So.  2d  475  (Miss.  1972),  appeal  dismissed,  41  U.S.L.W.  3442  (U.S.  Feb. 
20,   1973)  . 


488  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

3.  Availability  of  facilities  and  personnel  to  make  test  at 
time  and  place  requested  which  is  reasonably  accessible  to  the 
place  of  incarceration. 

4.  Refusal  by  officers  to  permit  prisoner  to  communicate 
with  an  attorney  or  other  person  of  his  choice  in  an  effort  to 
have  a  requested  test  made.42 

While  this  case  was  decided  before  the  Mississippi  Act  went  into  effect, 
the  court  recognized  its  coming.  Since  the  Act  does  not  require  that  a 
test  be  given,  Scarborough  presents  the  Mississippi  position  when  no  test 
is  given  by  the  law  enforcement  agency  and  the  defendant  requests  one. 

The  Act  does  grant  the  defendant  who  actually  takes  a  police  ad- 
ministered test  the  right  to  an  independent  test  by  a  person  of  his  own 
choosing,  but  the  failure  or  inability  to  secure  this  independent  test  does 
not  preclude  the  use  of  the  test  given  by  the  law  enforcement  agency.43 
The  Act  does  not  require  law  enforcement  officers  to  inform  the  de- 
fendant of  his  right  to  an  independent  test,44  but  it  does  provide  that 
"anyone  arrested  under  the  provisions  of  this  act  shall  be  informed  im- 
mediately after  being  booked  that  he  has  the  right  to  telephone  for  the 
purposes  of  requesting  legal  or  medical  assistance."45  This  should  serve 
to  allow  the  uninformed  defendant  to  discover  his  right  to  an  indepen- 
dent test.  Discovery  at  the  time  of  booking,  however,  will  probably  be  of 
little  consequence.  The  inequities  of  such  late  notification  were  pointed 
out  in  the  following  language  from  Scarborough: 

It  is  a  matter  of  common  knowledge  that  time  sobers  a 
drunk  up  since  the  level  of  alcohol  in  the  blood  decreases  with 
each  passing  hour.  The  critical  stage  in  proceedings  against  any- 
one charged  with  intoxication,  is  immediately  after  the  arrest. 
To  limit  such  person's  access  to  an  attorney  or  friends  until 
after  a  certain  number  of  hours  have  passed  is  in  effect  deny- 
ing him  effective  means  to  prepare  a  defense.46 

This  rationale  would  certainly  apply  if  policemen  delayed  booking  a 
defendant  in  order  to  render  his  right  to  legal  or  medical  assistance  in- 
effective. 


42/d.  at  479. 

43Miss.  Code  Ann.  §  8175-18   (Supp.  1972) . 

44ln  Lacy  v.  Orr,  276  Cal.  App.  694,  81  Cal.  Rptr.  276  (1969) ,  a  California  court 
held  that  even  though  the  statute  gave  the  defendant  the  right  to  an  independent 
test,  there  was  no  burden  on  law  enforcement  officials  to  inform  the  defendant  of 
this  right.  See  People  v.  Kovacik,  205  Misc.  275,  128  N.Y.S.2d  492,  508-09  (Ct.  of  Spec. 
Sess.  1954)  . 

45Miss.  Code  Ann.  §  8175-09   (Supp.  1972). 

46261  So.  2d  at  477. 


1973]  COMMENTS  489 

The  final  consideration  on  the  invocation  of  the  Act  is  the  defend- 
ant's right  to  counsel  before  submitting  to  or  refusing  the  test.  There  are 
two  constitutional  issues  involved.  First,  is  there  a  right  to  counsel  under 
the  sixth  amendment?  Second,  if  there  is  a  right  to  counsel,  is  the  warn- 
ing requirement  of  Miranda  v.  Arizona*1  applicable?  There  is  a  split  of 
authority  on  the  defendant's  sixth  amendment  right  to  counsel.  It  is 
clear  that  if  the  defendant  has  no  choice  about  taking  the  test,  he  has 
no  rights  with  which  legal  counsel  could  assist  him.48  A  problem  has 
arisen,  however,  when  the  statute  grants  the  defendant  the  right  to 
refuse  the  test.  The  issue  is  further  complicated  by  the  distinction  drawn 
by  some  courts  between  statutes  granting  a  right  of  refusal  and  statutes 
merely  stipulating  that  no  test  will  be  given  if  the  defendant  refuses  to 
submit.49  Right  to  counsel  is  applicable  when  there  is  a  critical  stage  in 
the  prosecution  and  legal  assistance  is  necessary  to  protect  the  rights  of 
the  accused.50  If  the  defendant's  refusal  results  in  the  forfeiture  of  his 
driver's  license,  it  could  be  argued  that  this  is  a  critical  stage  at  which 
legal  advice  could  assist  the  defendant  in  his  choice  of  alternatives.  A 
minority  of  courts  have  found  the  right  to  counsel  to  be  present  before 
the  defendant  decides  whether  to  submit  to  chemical  testing.51  The  more 
logical  result  has  been  reached  by  other  courts  which  have  held  that  the 
defendant  has  the  right  to  confer  with  counsel  as  long  as  it  does  not 
endanger  the  giving  of  the  test.52  Time  is  of  essence  since  the  alcohol 
dissipates  in  the  body  with  the  passage  of  time,  and  the  statutory  purpose 
of  gathering  chemical  evidence  would  be  frustrated  if  the  defendant  were 


47He  must  be  warned  prior  to  any  questions  that  he  has  the  right  to  remain 
silent,  that  anything  he  says  can  be  used  against  him  in  a  court  of  law,  that 
he  has  the  right  to  the  presence  of  an  attorney,  and  that  if  he  cannot  afford 
an  attorney  one  will  be  appointed  for  him  prior  to  any  questioning  if  he  so 
desires. 

384  U.S.  436,  479   (1966)    (emphasis  added) . 

48Schmerber  v.  California,  384  U.S.  757,  765-66    (1966)  ;   accord  People  v.  Craft, 

28  N.Y.2d  274,  270  N.E.2d  297    (1971) . 

49ln  Campbell  v.  Superior  Court,  106  Ariz.  542,  479  P.2d  685    (1971)  ,  the  court 

was  reviewing  a  statute  which,  like  section  8175-11  of  the  Mississippi  Act,  simply  states 

that  no  test  shall  be  given  if  the  defendant  refuses.  The  court  said: 

This  language  does  not  give  a  person  a  "right"  to  refuse  to  submit  to  the  test, 
only  the  physical  power.  .  .  .  [T]he  "obvious  reason  for  acquiescence  in  the 
refusal  of  such  a  test  by  a  person  who  as  a  matter  of  law  is  'deemed  to  have 
given  his  consent'  is  to  avoid  the  violence  which  would  often  attend  forcible 
test  upon  recalicitrant  inebriates." 

Id.,  479  P.2d  at  692,  citing  Bush  v.  Bright,  264  Cal.  App.  2d  788,  71  Cal.  Rptr.  123, 

124   (1968). 

sopowell  v.  Alabama,  278  U.S.  45    (1932) . 

siJE.g.,  City  of  Tacoma  v.  Heater,  67  Wash.  2d  733,  409  P.2d  867    (1966)  . 

ssPeople  v.  Gursey,  22  N.Y.2d  224,  239  N.E.2d.  351,  292  N.Y.S.2d  416    (1968). 


490  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

allowed  to  delay  the  test.53  A  majority  of  courts  have  found  that  prior 
to  the  determination  of  whether  to  submit  to  a  chemical  test,  no  right 
to  counsel  exists,54  thereby  assuring  that  the  test  will  be  given  at  a  time 
when  the  result  will  be  most  indicative  of  the  alcoholic  content  of  the 
defendant's  body.55 

If  there  is  no  right  to  counsel  before  the  test  when  the  defendant  re- 
quests one,  it  surely  follows  that  law  enforcement  officers  are  not  re- 
quired to  inform  the  defendant  of  a  non-existent  right  to  counsel.  If 
however,  the  defendant  does  have  a  right  to  counsel,  the  question  arises 
as  to  whether  he  must  be  informed  of  this  right.  While  an  overwhelming 
majority  of  courts  have  held  that  Miranda  warnings  are  not  applicable,56 
at  least  one  court  has  required  them.57  The  cases  have  consistently  found 
Miranda  inapplicable  for  various  reasons.  One  approach  is  that  since 
the  defendant  does  not  have  the  right  to  refuse  the  test,  there  is  no  need 
for  the  assistance  of  legal  counsel.58  This  rationale,  based  on  Schmerber 
v.  California,59  can  present  a  problem  if  the  state  statute  in  question 
grants  the  defendant  the  right  to  refuse  the  test.60    Some  courts  have 

53The  rationale  of  the  Mississippi  Supreme  Court  in  deciding  that  if  a  test 
requested  by  the  defendant  is  going  to  have  any  meaning  it  must  be  available 
without  delay  is  also  applicable  to  the  statutory  test.  Scarborough  v.  State,  261  So.  2d 
475    (Miss.  1972). 

This  is  especially  true  when  the  alcohol  reading  to  be  used  is  from  the 
time  of  testing  and  not  an  extrapolation  of  the  alcohol  reading  at  the  time  of 
apprehension.  Miss.  Code  Ann.  §  8175-15    (Supp.  1972) .  See  also  note  33  supra. 

™E.g.,  Campbell  v.  Superior  Court,  106  Ariz.  542,  479  P.2d  685  (1971) ;  State  v. 
Stevens,  252  A.2d  58    (Me.  1969)  . 

55The  Mississippi  case  of  Scarborough  v.  State,  261  So.  2d  475  (Miss.  1972) 
appeal  dismissed,  41  U.S.L.W.  3442  (U.S.  Feb.  20,  1973),  was  decided  before  the 
Mississippi  statute  was  effective  and  concerned  a  due  process  question  of  the  de- 
fendant's right  to  call  a  doctor  to  give  him  a  blood  test  for  alcohol  content,  but  it 
would  seem  to  indicate  that  the  Mississippi  Supreme  Court  will  follow  the  majoriy  in 
finding  no  right  to  counsel  before  choosing  to  submit  to  or  refuse  a  chemical  test. 

56£.g.J  Campbell  v.  Superior  Court,  106  Ariz.  542,  479  P.  2d  685  (1971) ;  State  v. 
Kenderski,  99  N.J.  Super.  224,  239  A.2d  249    (App.  Div.  1968) . 

57ln  the  case  of  Government  of  Virgin  Islands  v.  Quinones,  301  F.  Supp.  246 
(D.  V.I.  1969) ,  a  federal  district  court  held  that  Schmerber  did  not  apply  to  a  state 
statute  which  granted  the  right  to  refuse  the  test  and  therefore  the  Miranda  warnings 
must  be  given.  The  court  did  not  consider  the  question  of  appointed  counsel  for 
indigents,  but  seemed  to  imply  that  all  sixth  amendment  rights  applied. 

^See  also  State  v.  Randolph,  273  N.C.  120,  159  S.E.2d  324  (1968)  . 

59384  U.S.  757    (1966). 

eoThis  would  require  the  unnecessary  and  questionable  distinction  the  Arizona 
court  made  between  the  statutory  right  to  refuse  and  the  authority  to  see  that 
no  test  is  given  without  his  actual  consent.  Campbell  v.  Superior  Court,  106  Ariz.  542, 
479  P.2d  685    (1971)  .  See  note  49  supra. 


1973]  COMMENTS  491 

found  that  Miranda  warnings  are  not  required  in  misdemeanor  cases.61 
This  reasoning  is  questionable  in  light  of  the  recent  Supreme  Court  case 
of  Argersinger  v.  Hamlin,62  which  required  that  indigents  have  the 
benefit  of  appointed  counsel  at  any  trial  which  might  result  in  incarcera- 
tion. The  Court  was  not  willing  to  accept  the  state's  determination  to 
dispense  with  the  defendant's  right  to  counsel  where  the  punishment  was 
minimal.  While  Argersinger  Was  concerned  with  only  the  trial  stage,  it 
does  cast  doubt  on  the  misdemeanor-felony  dichotomy  as  a  basis  for  de- 
ciding when  a  right  to  counsel  exists.  The  most  logical  basis  for  finding 
Miranda  inapplicable  is  that  Miranda  is  based  on  the  fifth  amendment 
right  against  self-incrimination  and  not  a  sixth  amendment  right  to 
counsel.63  This  would  enable  those  states  which  do  find  a  right  to  coun- 
sel under  their  statute  not  to  require  that  Miranda  warnings  be  given 
before  a  defendant  may  be  required  to  submit  to  the  chemical  test.  It  is 
clear  that  if  the  full  Miranda  warnings  are  required,  including  appointed 
counsel  for  indigents,  the  resulting  delay  would  severely  restrict  the  effect 
of  the  statute.64  Under  Schmerber  there  is  no  doubt  that  a  chemical  test 
for  intoxication  is  not  "testimonial"  and  therefore  not  protected  by  the 
fifth  amendment.  As  one  state  court65  recently  said: 

Miranda  is  bottomed  on  the  privilege  against  self-incrimination 
and  bars  the  use  of  communications  by  or  testimonial  utterances 

6i£.g.,  State  v.  Pyle,  19  Ohio  St.  2d  64,  249  N.E.2d  826    (1969)  . 
62407  U.S.  25   (1972) . 

63£.gv  A  New  York  district  court  in  People  v.  Gielarowski,  58  Misc.  2d  832,  296 
N.Y.S.2d  878  (Sup.  Ct.  1968) ,  said  that  Miranda  did  not  apply  to  the  sobriety  test  since 
Miranda  was  based  on  the  fifth  amendment  privilege  against  self-incrimination  and  not 
the  sixth  amendment.  It  should  be  noted,  however,  that  the  New  York  implied  consent 
statute  does  not  specifically  grant  the  defendant  the  right  to  refuse  the  test,  but  does 
provide  him  with  the  authority  to  see  that  no  test  is  given  without  his  actual  consent. 
645ee  generally,  7  Wake  Forest  L.  Rev.  313    (1971)  .  The  author  concludes  his 
discussion  of  whether  Miranda  warnings  should  apply   to  sobriety   test  with: 
Requiring  the  full  Miranda  warnings  .  .  .  will  introduce  other  problems  of 
even  greater  magnitude  such  as  the  expense  to  the  state  in  providing  lawyers 
for   drivers   who   claim    they    cannot   afford    counsel   and    the   possible   inter- 
ference that  could  occur  with  the  giving  of  the  test  while  waiting  for  a  lawyer 
to  be  located.  To  add  these  problems  to  an  already  difficult  job  of  enforcing 
highway  safety  seems  unreasonable  when  the  basic  reason  for  the  Miranda 
warnings  is   to   insure   that   the   accused   is   treated   fairly  and    that  his  con- 
constitutional  rights  are  protected.  These  requirements  can  be  met  by  inform- 
ing the  accused  of  his  various  options  under  the  statute  and,  if  he  desires 
the  aid  of  counsel  in  assisting  him  to  make  his  decisions,  by  allowing  him 
reasonable  opportunity  to  obtain  this  advice.  If  the  accused  is  fully  advised  of 
the  rights  given  to  him  by   the  statute,  the  courts  would  be  reasonable  in 
holding  that  the  Miranda  warnings  do  not  have  to  be  given  to  the  accused 
before  he  takes  the  breathalyzer  or  blood  test. 
Id.  at  324-25.  See  also  Comment,  The  Pennsylvania  Implied  Consent  Law:  Problems 
Arising  in  a  Criminal  Proceeding,  74  Dick.  L.  Rev.  219,  237-39   (1970)  . 

esState  v.  Kenderski,  99  N.J.  Super.  224,  239  A.2d  249    (App.  Div.  1968)  . 


492  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

of  a  person  unless  the  four-fold  warning  has  been  given  and 
applied.  A  breathalyzer  test  is  unrelated  to  a  communication 
by  the  subject.  Rather,  it  is  a  search  of  the  person  and  therefore 
subject  only  to  a  question  of  reasonableness.66 

III.     Refusal  to  Take  the  Test 

If  a  driver  refuses  to  submit  to  a  breath  test,  the  Act  provides  that 
none  shall  be  given.67  The  refusal  to  submit  invokes  the  administrative 
penalty  of  suspension  of  the  driving  privilege.  This  has  no  relation  to 
the  criminal  sanctions  that  still  may  be  imposed  under  section  8175-07 
which  provides  for  prosecution  when  no  chemical  test  is  given.68 

Section  8175-11  provides  that  the  arresting  officer  may  demand  the 
license  of  the  person  refusing  to  submit  to  testing.  The  officer  is  then 
required  to  give  the  driver  a  receipt  for  his  license  and  forward  the 
license  to  the  Commissioner  of  Public  Safety  along  with  a  sworn  report 
that  the  officer  had  reasonable  grounds  to  believe  that  the  motorist  had 
been  driving  while  intoxicated  and  refused  the  officer's  request  to  sub- 
mit to  a  breath  test.  The  license  is  suspended  for  90  days  from  the  time 
of  arrest.  This  penalty  for  refusing  to  submit  to  the  test  is  not  as  severe 
as  in  most  states.  The  Uniform  Vehicle  Code  suggests  that  the  license 
be  revoked  rather  than  suspended,  which  means  that  the  license  is  not 
automatically  reinstated.69  More  than  half  of  the  states  provide  for  a 
suspension  or  revocation  for  at  least  6  months.  Nebraska  imposes  a 
criminal  sanction  as  well  as  an  administrative  penalty  for  refusing  to 
submit  to  a  chemical  test.70  The  present  federal  standard  requires  that 
the  driver's  license  be  revoked  for  a  minimum  of  6  months.  Even  though 
Mississippi  faces  a  possible  loss  of  up  to  10  percent  of  its  federal  highway 
funds,  Mississippi  Senate  bill  1508,  which  would  have  amended  section 
8175-11  from  90  days  to  180  days,  failed  to  gain  passage  in  the  1973 
legislative  session.71 

Section  8175-12  establishes  the  hearing  procedure  for  a  person  who 
has  refused  to  submit  to  a  test  and  has  forfeited  his  license  to  the  request- 
ing officer.  The  burden  of  initiating  the  hearing  is  upon  the  individual. 
Upon  request,  the  Commissioner  of  Public  Safety  will  provide  the  indi- 
vidual a  hearing  on  whether  the  license  suspension  was  in  accordance 
with  the  Act.  The  hearing  request  will  be  granted  in  accordance  with  the 

es/d.  at  251. 

67Miss.  Code  Ann.  §  8175-11    (Supp.  1972). 

68£.g.,  Anderson  v.  Macduff,  208  Misc.  271,  143  N.Y.S.2d  257   (Sup.  Ct.  1954)  . 

69Uniform  Vehicle  Code  §  6-205.1    (1968)  . 

70Neb.  Rev.  Stat.  §  39-727.03    (1960) . 

iiSee  note  3  supra. 


1973]  COMMENTS  493 

license  suspension  procedure  used  prior  to  the  Act.  The  Act  provides 
that  the  only  issues  which  the  individual  may  raise  at  the  hearing  are 
whether: 

(1)  the  officer  had  probable  cause  to  believe  the  motorist  had  been 
driving  while  intoxicated  upon  public  roads; 

(2)  the  motorist  was  placed  under  arrest; 

(3)  the  motorist  in  fact  refused  to  submit  to  the  officer's  request  to 
submit  to  a  test;  or 

(4)  the  officer  informed  the  motorist  of  the  consequences  of  refus- 
ing to  take  the  test.72 

The  constitutionality  of  this  procedure  is  questionable  in  light  of 
recent  United  States  Supreme  Court  decisions.  While  courts  in  the  past 
have  denied  the  application  of  the  due  process  clause  of  the  14th  amend- 
ment on  the  theory  that  driving  is  a  privilege  and  not  a  right,73  the 
Supreme  Court  in  Bell  v.  Burson74  recently  said: 

Once  licenses  are  issued,  as  in  petitioner's  case,  their  continued 
possession  may  become  essential  in  the  pursuit  of  a  livelihood. 
Suspension  of  issued  licenses  thus  involves  state  action  that  ad- 
judicates important  interests  of  the  licensees.  In  such  cases  the 
licenses  are  not  to  be  taken  away  without  that  procedural  due 
process  required  by  the  Fourteenth  Amendment,  (citations 
omitted)  This  is  but  an  application  of  the  general  proposition 
that  relevant  constitutional  restraints  limit  state  power  to 
terminate  an  entitlement  whether  the  entitlement  is  denom- 
inated a  "right"  or  a  "privilege."75 

It  is  clear  that  license  suspension  by  the  state  must  meet  the  require- 
ments of  due  process  of  law  as  guaranteed  by  the  United  States  Constitu- 
tion.76 The  Mississippi  Act  contains  two  procedures  which  might  not 
meet  due  process  standards. 

First,  the  Mississippi  Act  provides  for  suspension  of  the  license  be- 
fore a  hearing  is  held.    The  Supreme  Court  in  Bell  said: 

[I]t  is  fundamental  that  except  in  emergency  situations  (and  this 
is  not  one)   due  process  requires  that  when  a  State  seeks  to  ter- 

72Miss.  Code  Ann.  §  8175-12    (Supp.  1972)  . 

73Thornhill  v.  Kirkman,  62  So.  2d  740  (Fla.  1953)  ;  cf.  Pollion  v.  Lewis,  320 
F.  Supp.  1343    (N.D.  111.  1970)  . 

74402  U.S.  535   (1971)  ;  see  56  Minn.  L.  Rev.  264   (1971)  . 

7^402  U.S.  at  539. 

76£.gv  Reese  v.  Kassab,  334  F.  Supp.  744  (W.D.  Pa.  1971)  (suspension  of  license 
under  a  point  system  based  on  penalties  from  traffic  violation  held  to  be  proper 
only  after  notice  and  opportunity  to  be  heard  were  afforded  the  motorist)  .  See 
generally  K.  Davis,  Administrative  Law  Text  §  7.13    (1959)  . 


494  MISSISSIPPI  LA  W  JO  URN  A  L  [vol*  44 

minate  an  interest  such  as  that  here  involved,  it  must  afford 
"notice  and  opportunity  for  hearing  appropriate  to  the  nature 
of  the  case"  before  the  termination  becomes  effective." 

In  Bell,  an  uninsured  motorist's  license  was  suspended  because  he  failed 
to  meet  financial  responsibility  laws  following  an  accident.  This  pre- 
hearing suspension  was  held  unconstitutional,  as  have  been  other  state 
actions  adjudicating  important  personal  interests  prior  to  a  hearing.78 
Nevertheless,  the  Court  in  Bell  implied  that  emergency  situations  might 
arise  which  would  allow  a  pre-hearing  suspension.  In  Goldberg  v.  Kelly,"* 
the  Court  said: 

[I]n  a  wide  variety  of  situations,  it  has  long  been  recognized  that 
where  harm  to  the  public  is  threatened,  and  the  private  interest 
infringed  is  reasonably  deemed  to  be  of  less  importance,  an 
official  body  can  take  summary  action  pending  a  later  hearing.80 

It  could  be  argued  that  suspension  of  driver's  license  for  those  intoxi- 
cated would  be  an  emergency  situation  where  the  "public  interest  is 
threatened."  This,  however,  would  entail  the  drawing  of  a  negative 
inference  —  that  the  motorist  would  not  refuse  unless  he  was  intoxicated. 
In  Campbell  v.  Superior  Court,*1  the  Arizona  Supreme  Court  upheld 
pre-hearing  suspension  as  an  emergency  situation  envisioned  in  Goldberg 
and  drew  a  negative  inference  from  the  motorist's  refusal,  saying: 

[Tjhere  is  a  high  degree  of  probability  that  a  motorist  who  re- 
fuses to  submit  to  a  reasonably  reliable  chemical  test  for  deter- 
mining intoxication  is  a  dangerous  driver;  therefore,  it  is  the 
opinion  of  this  court  that  there  exists  a  compelling  public  in- 

77402  U.S.  at  542. 

78The  Court  in  Bell  relied  on  the  cases  of  Sniadach  v.  Family  Fin.  Corp.,  395  U.S. 
337  (1969)  (establishing  the  right  to  a  hearing  prior  to  the  garnishment  of  wages), 
and  Goldberg  v.  Kelly,  397  U.S.  254  (1970)  (establishing  the  right  to  a  hearing 
prior  to  discontinuance  of  welfare  payments)  . 

79397  U.S.  254   (1970). 

so/d.  at  263  n.10. 

*i  106  Ariz.  542,  479  P.2d  685  (1971)  .  The  same  result  was  reached  by  the 
Kentucky  Court  of  Appeals  in  Craig  v.  Commonwealth,  471  S.W.2d  11  (Ky.  Ct. 
App.  1971)  .  This  case  was  decided  after  the  Bell  case  which  required  a  hearing 
prior  to  the  suspension  of  license  under  financial  responsibility  laws.  Both  Goldberg 
and  Bell  allow  for  emergency  situations  and  the  Kentucky  court  cited  the  Arizona 
court's  negative  inference  of  intoxication.  While  the  Kentucky  court  did  not  discuss 
the  effect  of  the  Bell  decision  on  pre-hearing  suspension  under  implied  consent,  it 
seems  they  assumed  it  to  be  an  exception  as  an  emergenq'  situation  due  to  the  motorist 
being  deemed  dangerous  to  the  public  by  this  negative  inference  of  intoxication  drawn 
from  his  refusal  to  submit  to  an  alcohol  test.  See  also  City  of  Westerville  v. 
Cunningham,  15  Ohio  St.  2d   121,  239  N.E.2d  40    (1968) . 


1973]  COMMENTS  495 

terest  in  the  immediate  removal  of  such  persons  from  the  high- 
ways of  this  state  pending  a  hearing  on  the  matter.82 

Although  the  Supreme  Court  has  given  no  guidelines  as  to  what  is 
an  emergency  situation,83  there  appears  to  be  a  valid  argument  that  an 
intoxicated  driver  would  present  an  emergency,  and  immediate  suspen- 
sion of  his  license  would  be  necessary  for  the  protection  of  the  public. 
However,  the  14th  amendment  requirements  of  notice  and  opportunity 
to  be  heard  are  still  applicable.  The  question  then  arises  as  to  what 
procedure  must  be  afforded  the  motorist  following  his  license  suspension. 
The  traditional  requirements  of  notice  and  opportunity  have  been  de- 
veloped for  the  situation  where  the  state  has  not  yet  acted,  but  plans  to 
adjudicate  a  vital  interest  of  the  individual.  If  pre-hearing  suspension 
under  implied  consent  statutes  is  allowed  as  an  emergency  exception  to 
the  14th  amendment,  the  state  action  affecting  the  individual  has  already 
taken  place.  It  would  seem  that  the  protection  of  the  individual's  rights 
demanded  a  notification  of  his  right  to  a  hearing.84  The  Mississippi  Act 
does  not  require  such  notice.  It  only  provides  the  right  to  hearing  and 
judicial  review  if  the  individual  requests  them.85  The  Supreme  Court 
has  said  "that  due  process  does  not  demand  'inflexible  procedures  univer- 
sally applicable  to  every  imaginable  situation,'  but  must  be  resolved  after 
a  balancing  of  the  governmental  function  involved  against  the  substance 
of  the  private  interest  affected."86  If  the  state  is  allowed  to  suspend  a 
person's  license  without  a  hearing,  the  "substance  of  the  private  interest 
affected"  seems  to  be  compelling  enough  to  require  that  the  state  carry 
the  burden  of  assuring  the  right  to  a  hearing  rather  than  the  individual 
having  to  initiate  the  proceeding  without  notice  of  this  right.  In  Gold- 
berg, the  Court  held  that  pre-hearing  suspension  should  not  be  allowed 
but  further  implied  that  a  pre-hearing  suspension  "pending  a  later  hear- 
ing" might  be  permissible.  It  would  seem  that  a  state  should  at  least 
provide  notice  to  the  individual  of  his  right  to  a  hearing  on  the  restric- 
tion placed  upon  him.  While  it  could  be  argued  that  the  state  must  hold 

82106  Ariz.  542,  479  P.2d  685,  694    (1971) . 

ssin  Bell  the  Court  cited  some  emergency  cases  involving  the  taking  of  property, 
but  these  cases  turned  on  the  theory  that  there  was  a  distinction  between  property 
rights  and  personal  rights.  402  U.S.  at  542  n.5.  See  North  American  Cold  Storage 
Co.  v.  Chicago,  211   U.S.  306    (1908) . 

84ln  Grannis  v.  Ordean,  234  U.S.  385,  394  (1914) ,  the  Supreme  Court  said  that 
the  opportunity  to  be  heard  is  a  fundamental  requisite  of  due  process.  Since  the 
opportunity  to  be  heard  will  be  a  reality  only  if  the  motorist  requests  a  hearing  it 
would  seem  that  due  process  would  require  that  he  must  be  told  by  the  state  of  his 
right  to  be  heard  upon  request. 

ssMiss.  Code  Ann.  §  8175-12    (Supp.  1972)  . 

seCafeteria  Workers  Local  473  v.  McElroy,  367  U.S.  886,  895    (1961) . 


496  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

a  hearing  on  the  action  already  taken,  it  would  be  better  to  require  only 
notice  to  the  individual  of  the  right  to  a  hearing.  This  would  assure 
that  the  individual  was  accorded  his  14th  amendment  right  to  due  process 
while  not  triggering  the  state  administrative  procedure  unless  the  indi- 
vidual planned  to  avail  himself  of  it.87 

Authority  can  be  found  for  requiring  the  state  to  bear  the  burden 
of  protecting  the  individual's  rights  in  those  cases  where  emergency 
situations  have  ceased  to  exist.88  Once  the  emergency  has  ceased  to  exist, 
so  has  the  power  to  act  in  a  manner  prohibited  by  the  Constitution. 
Therefore,  when  the  intoxicated  motorist  (assuming  that  his  intoxication 
can  be  inferred  from  his  refusal  to  take  the  test)  has  sobered,  the  emer- 
gency of  the  danger  to  the  public  no  longer  exists.  It  would  seem  that 
the  state  would  then  be  responsible  for  holding  a  hearing  in  order  for 
the  suspension  to  continue,  or  at  least  notify  the  defendant  that  a 
hearing  is  available.89 

If  review  of  the  suspension  is  held,  it  is  limited  to  the  four  issues 
stated  above.  The  first  two  have  been  discussed  in  section  I.  The 
third  issue  that  may  be  raised  at  the  hearing  is  whether  the  arresting 
officer  informed  the  defendant  of  the  consequences  of  a  refusal  to  submit 
to  the  test.  The  Act  specifically  directs  the  arresting  officer  to  inform 
the  motorist,90  and  a  failure  to  do  so  will  result  in  the  reinstatement  of 
the  driver's  license.91 

The  final  basis  for  reinstatement  of  the  license  at  the  hearing  is 
whether  the  motorist  in  fact  refused  to  submit  to  a  test.92  A  qualified 
assent  has  been  held  to  be  a  refusal  where  a  motorist  agreed  to  the  test 

87However,  Illinois,  the  last  state  to  enact  implied  consent  legislation,  not  only 
provides'  for  notice  of  the  hearing  but  also  does  not  suspend  the  license  for  28  days. 
If  by  that  time  the  motorist  has  not  requested  a  hearing,  this  license  is  then 
suspended.  III.  Ann.  Stat.  ch.  95i/£,  §  11-501.1    (1971). 

z&See,  e.g.,  Jefferson  Standard  Life  Ins.  Co.  v.  Noble,  185  Miss.  360,  188  So. 
289    (1939)  . 

ssSee  Holland  v.  Parker,  469  F.2d  1013  (8th  Cir.,  1972)  .  Contra,  Funke  v. 
Department  of  Motor  Vehicles,  1  Cal.  App.  3d  449,  81  Cal.  Rptr.  662  (1969)  ;  August 
v.  Department  of  Motor  Vehicles,  264  Cal.  App.  2d  52,  70  Cal.  Rptr.  172   (1968)  . 

soMiss.  Code  Ann.  §  8175-09    (Supp.  1972)  . 

MSee  Harrington  v.  Tofany,  59  Misc.  2d.  197,  298  N.Y.S.2d  283  (Sup.  Ct.  1969) .  In 
State  v.  Batterman,  79  S.D.  191,  110  N.W.2d  139  (1961),  the  court  held  that  a  failure  of 
the  officer  to  inform  the  defendant  of  the  consequences  of  a  refusal  was  grounds 
for1  reinstatement  of  the  license  but  did  not  affect  the  admissibility  of  the  test  results 
in  the  criminal  proceeding.  However,  the  Uniform  Vehicle  Code  specifically  provides 
that  failure  to  warn  of  the  consequences  shall  not  be  an  issue  at  the  hearing. 

92lt  seems  that  a  clear,  unequivocal  request  is  necessary.  See,  e.g.,  Commonwealth 
v.  Powers,  453  S.W.2d  260    (Ky.  Ct.  App.  1970)  . 


1973]  COMMENTS  497 

only  if  his  own  physician  was  present,93  where  a  motorist  delayed  sub- 
mission,94 or  where  a  motorist  requested  an  unavailable  test.95  If  a  right 
to  counsel  exists,  the  delay  resulting  from  a  request  to  consult  with  an 
attorney  should  not  constitute  a  refusal.  If,  however,  no  right  to  counsel 
exists  before  deciding,  a  delay  in  submitting  for  this  reason  will  consti- 
tute a  refusal.96 

While  the  Act  designates  only  four  issues  that  may  be  raised  in  the 
hearing,  it  is  possible  that  in  Mississippi  the  non-intoxication  of  the 
motorist  might  be  an  issue  due  to  a  flaw  in  the  Act.  Section  8175-11 
provides  that  any  person  acquitted  in  the  criminal  proceeding  shall  have 
his  license  automatically  reinstated.  The  underlying  theory  of  implied 
consent  is  that  the  license  suspension  is  a  penalty  for  refusing  the  test 
and  not  a  penalty  for  driving  while  intoxicated.97  The  Mississippi  Act 
eliminates  much  of  the  incentive  for  a  motorist  to  take  the  test.  If  a 
motorist  refuses  the  test,  the  police  are  denied  the  convincing  chemical 
proof  of  intoxication  which  increases  criminal  convictions.  The  motorist 
is  rewarded  for  making  the  conviction  harder  to  obtain  by  having  his 
license  returned  if  the  state  fails  to  convict  him.  Perhaps  the  drafters  of 
the  Act  felt  that  since  the  suspension  period  was  only  90  days,  a  motorist 
would  not  be  able  to  obtain  an  acquittal  prior  to  the  return  of  his 
license.  In  addition  to  this  glaring  weakness  of  automatic  reinstatement 
upon  acquittal  of  the  criminal  charge,  it  is  possible  that  innocence  might 
be  a  proper  issue  at  the  administrative  hearing.  A  counterveiling  in- 
centive for  taking  the  test  is  the  fact  that  when  no  test  is  given,  the 
most  severe  penalty  must  be  imposed  upon  a  convicted  driver.  Under 
section  8175-15  there  are  two  degrees  of  intoxication  based  upon  the 
alcoholic  content  of  the  blood.  If  no  test  is  given,  it  is  assumed  that  the 
defendant  was  driving  while  intoxicated  rather  than  the  less  severe 
offense  of  driving  under  the  influence.  Section  8175-12  states  four  issues 
wihch  are  to  be  included  at  the  hearing  but  does  not  specifically  restrict 
the  hearing  to  only  those  issues.  Innocence  or  guilt  is  not  an  issue  in  the 
majority  of  state  administrative  hearings,  but  this  is  because  the  license 
revocation  is  treated  as  the  penalty  for  refusing  the  test  and  the  results 

93Cushman  v.  Tofany,  36  App.  Div.  2d  1000,  321  N.Y.S.2d  831    (Sup.  Ct.  1971)  . 

94Law  v.  City  of  Danville,  212  Va.  702,  187  S.E.2d  197  (1972) . 

MSee  State  v.  Lauseng,  289  Minn.  344,  183  N.W.2d  926   (1971) . 

ssstate  v.  Pandoli,  109  N.J.  Super.  1,  262  A.2d  41  (App.  Div.  1970)  .  But  see  Rust  v. 
Department  of  Motor  Vehicles,  267  Cal.  App.  2d  545, 73  Cal.  Rptr.  366  (1968),  where  the 
court  held  that  if  Miranda  warnings  were  given,  even  though  not  required  before 
the  test,  the  defendant's  misunderstanding  that  he  did  have  a  right  to  counsel  was 
not  a  refusal  to  take  the  test. 

s^Joyner  v.  Garrett..  279  N.C.  226.  182  S.E.2d  553  (1971);  Smestad  v.  Ellingson, 
191   N.W.2d  799    (N.D.  1971). 


498  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

of  any  criminal  proceeding  have  no  bearing.98  If  guilt  or  innocence  is  a 
proper  issue  at  the  administrative  hearing,  it  will  complicate  what  should 
be  a  simple  procedure  and  thereby  circumvent  the  effect  of  the  statute. 
The  penalty  for  refusing  a  test  should  be  solely  an  administrative  deter- 
mination. If  it  develops  that  people  are  refusing  the  test  and  escaping 
license  suspension,  there  will  be  no  incentive  to  take  the  test. 

Section  8175-22  provides  that  a  refusal  to  submit  to  the  test  is  ad- 
missible in  a  criminal  action  under  the  Act.  In  the  states  where  there  is 
no  statutory  provision  on  the  admissibility  of  a  refusal,  it  has  been  held 
that  since  the  test  itself  is  nontestimonial  and  no  right  to  refuse  exists, 
then  the  refusal  also  is  nontestimonial  and  its  admittance  does  not  vio- 
late the  defendant's  fifth  amendment  privilege  against  self-incrimina- 
tion." However,  states  which  do  grant  the  defendant  the  right  to  refuse 
the  test  have  also  allowed  evidence  of  a  refusal  to  take  the  test  to  be 
introduced  in  a  criminal  action.100  As  previously  discussed101  it  is  un- 
clear whether  the  Mississippi  statute  grants  the  defendant  the  right  to 
refuse  or  only  the  power  to  stop  the  test.102  Since  the  Mississippi  statute 
explicitly  provides  for  the  admissibility  of  the  refusal  in  criminal  actions, 
it  seems  clear  that  no  right  to  refuse  was  granted.  Since  a  statutory  right 
may  be  qualified  by  the  state,  it  seems  that  the  right  to  refuse  the  test 
is  limited  by  the  provision  allowing  introduction  of  evidence  regarding 
the  refusal. 

98£.g.,  Campbell  v.  Superior  Court,  107  Ariz.  330,  487  P.2d  397  (1971) ;  Joyner 
v.  Garrett,  279  N.C.  226,  182  S.E.2d  553  (1971) .  In  Ziemba  v.  Johns,  183  Neb.  644,  163 
N.W.2d  780  (1968),  the  defendant  argued  that  he  refused  to  take  the  test  because 
he  planned  to  plead  guilty  to  the  drunken  driving  charge,  which  he  subequently  did. 
He  argued  that  since  the  whole  purpose  of  the  implied  consent  statute  was  to  obtain 
criminal  convictions,  the  statutory  revocation  for  refusal  should  not  apply  to  him. 
The  court  rejected  this  argument  on  the  grounds  that  the  administrative  revocation 
and  criminal  proceeding  were  entirely  separate  and  independent  of  each  other. 
But  see  State  v.  Schlief,  289  Minn.  461,  185  N.W.2d  274  (1971).  See  Note,  2  ST. 
Mary's  L.J.  134  (1970),  for  a  discussion  of  the  Texas  statute  which  also  requires 
automatic  reinstatement  of  the  license  if  acquitted  of  the  criminal  charge. 

99£.g.,  Campbell  v.  Superior  Court,  107  Ariz.  330,  487  P.2d  397  (1971).  Contra, 
Gay  v.  City  of  Orlando,  202  So.  2d  896   (Fla.  App.  1967) . 

ioo£.gv  Stuart  v.  District  of  Columbia,  157  A.2d  294  (D.C.  1960) ;  Cupp  v.  State, 
373  P.2d  260  (Okla.  Crim.  App.  1962) .  Contra,  State  v.  Bock,  80  Idaho  296,  328 
P.2d  1065   (1958)  .  See  also  Annot.,  87  A.L.R.2d  370   (1963) . 

ioiThe  Arizona  court's  distinction  between  the  motorist's  right  to  refuse  the 
test  and  the  authority  to  not  permit  the  test  to  be  given  could  become  important 
if  Mississippi  feels  compelled  to  follow  the  majority  holding  that  a  refusal  is  in- 
admissible in  the  criminal  action  if  the  right  to  refuse  is  granted  by  the  statute. 
See  note  49  supra. 

102M1SS.  Code  Ann.  §  8175-09    (Supp.  1972) . 


1973]  COMMENTS  499 

Section  8175-23  provides  that  neither  a  refusal  to  submit  to  testing 
nor  the  test  results  may  be  introduced  in  evidence  in  a  civil  case.  Section 
8175-24  provides  that  neither  the  refusal  nor  the  test  results  shall  affect 
any  insurance  policy.  This  would  presumably  apply  also  to  evidence  of 
a  suspension  of  the  license  resulting  from  the  refusal,  otherwise,  the 
section  would  be  almost  meaningless  since  nearly  all  refusals  will  result 
in  a  90-day  license  suspension. 

Section  8175-10,  which  applies  only  to  those  who  were  driving, 
provides  for  the  taking  of  blood  samples  from  dead  or  unconscious 
accident  victims.  This  section  allows  a  test  to  be  given  even  though  there 
is  no  actual  consent.  The  section  further  provides  that  these  test  results 
may  not  be  used  in  any  criminal  or  administrative  hearing  unless  the 
person  tested  consents.  Nevertheless,  if  the  defendant  refuses  criminal 
action,  he  may  be  subject  to  the  administrative  suspension  procedure 
just  as  if  he  had  refused  the  test  initially.  Some  states  have  tried,  with 
conflicting  results,  to  use  blood  samples  from  accident  victims  incapable 
of  consent  which  were  taken  before  the  defendant  was  arrested.103  The 
Mississippi  statute  seems  to  indicate  that  the  incapable  accident  victim  is 
first  to  be  placed  under  arrest,  as  indicated  by  the  use  of  the  words 
"arresting  officer  has  reasonable  grounds  to  believe  the  person  to  have 
been  driving  a  motor  vehicle  upon  the  public  highways.  .  .  ."  If  an  arrest 
is  a  prerequisite  for  the  section,  it  will  be  hindered  by  the  fact  that 
Mississippi  has  no  statute  allowing  DWI  arrests  following  accidents 
unless  the  officer  can  meet  the  common  law  requirements  of  either  a 
warrant  or  observing  the  commission  of  the  misdemeanor.104  This  is 
another  major  flaw  in  the  Mississippi  Act.  The  placement  of  common 
law  misdemeanor  arrest  requirements  upon  the  statute  minimizes  its 
effect  in  both  ordinary  accidents  and  those  situations  involving  persons 
found  intoxicated  but  not  operating  a  vehicle  in  the  officer's  presence.105 
It  is  submitted  that  the  Mississippi  Legislature  should  authorize 
warrantless  arrests  based  upon  probable  cause  that  the  defendant  was 
driving  while  intoxicated.106 


estate  v.  Mitchell,  245  So.  2d  618  (Fla.  1971)  (held  admissible)  .  In  State  v. 
Deshner,  489  P.2d  1290  (Mont.  1971) ,  the  Montana  court  allowed  the  introduction  of 
a  blood  test  taken  while  the  defendant  was  unconscious  and  before  he  was  arrested. 
But  in  People  v.  Superior  Court,  6  Cal.  3d  757,  493  P.2d  1145,  100  Cal.  Rptr. 
281  (1972) ,  the  California  Supreme  Court  en  banc  held  that  the  blood  test 
was  a  search  and  seizure  and  could  be  upheld  only  as  incident  to  a  lawful  arrest. 

i045ee  notes  3  &  31  supra. 

io55ee  notes  3  &  12  supra. 

loeit  should  be  explicitly  authorized  for  both  accidents  and  all  DWI  cases.  An 
illustrative  case  of  this  fact  is  June  v.  Tofany,  34  App.  Div.  2d  732,  311  N.Y.S.2d  782 
(1970)  ,  where   the   New  York   statute   allowing  warrantless   misdemeanor   arrests   for 


500  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Further  incentive  for  this  recommendation  is  provided  by  the  possibility 
of  the  loss  of  a  portion  of  the  state's  allocated  federal  highway  funds.107 

IV.     The  Test  Itself 

While  there  are  many  types  of  tests,108  Mississippi  has  chosen  to  use 
the  photo-electric  intoximeter.109  This  machine  analyzes  the  breath  of 
the  individual  by  separating  the  carbon  dioxide  in  the  breath  from  the 
true  lung  air  (alveolar  air) .  This  enhances  the  validity  of  the  test  result 
because  the  alcohol  percent  in  the  blood  is  estimated  by  a  proven  ratio 
of  the  alcohol  in  the  breath  to  blood  alcohol.  The  ratio  is  based  upon 
the  alcohol  in  the  alveolar  air  only.  If  the  carbon  dioxide  was  not  sep- 
arated from  the  breath,  the  conversion  procedure  would  have  to  be 
complicated  by  an  estimation  of  how  much  carbon  dioxide  was  in  the 
breath  and  how  much  alveolar  air  remained.110 

The  photo-electric  intoximeter  test  is  founded  on  a  conversion  ratio 
from  breath  to  blood.  The  conversion  ratio  used  is  2100:  l.111  There  is  a 
standard  10  percent  margin  of  error  in  the  conversion  ratio  while  some 
comparison  tests  show  as  much  as  a  25  percent  error.112  The  machine 
collects  two  samples  of  alveolar  air,  one  of  which  gives  the  result  mea- 
sured by  the  machine  while  the  other  is  collected  in  a  tube  which  may 
be  tested  in  a  laboratory.  Thus,  the  two  samples  can  be  compared  and, 
if  a  discrepancy  appears,  another  test  may  be  taken.113 

In  addition  to  the  built-in  margin  of  error  in  estimating  blood  al- 
cohol from  that  found  in  the  breath,  there  are  other  factors  affecting  the 
assumption  of  intoxication  from  certain  statutory  percentages.  It  has 
been  shown  that  the  effect  of  alcohol  is  greater  when  rising  than  when 

violations  in  accidents  could  not  be  invoked  upon  a  man  found  unconscious  in  an 
automobile  with  surrounding  evidence  of  intoxication  since  the  offense  was  not  com- 
mitted in  the  officer's  presence.  The  statute  applied  only  to  accidents  and  there  was 
no  evidence  that  any  accident  had  taken  place. 

io7See  note  3  supra. 

io8Erwin,  Drunk  Driving  Cases  ch.  17-25. 

io9Letter  from  Mr.  Ernie  Albritton,  Representative,  Governor's  Highway  Safety 
Program,  to  Samuel  R.  Hammond,  Feb.  8,  1973. 

noThis  separation  of  alveolar  air  is  the  principal  difference  between  the  photo- 
electric intoximeter  and  the  intoximeter  previously  used  by  many  states.  Most  states 
which  were  using  the  intoximeter  have  switched  to  either  the  photo-electric  intoxi- 
meter or  the  breathalyzer  test  because  of  the  questionable  validity  of  the  results 
when  assuming  a  certain  COa  percent  of  the  breath.  Erwin,  Drunk  Driving  Cases 
ch.  19. 

m/d.  at  §  19.01,  pt.3,  at  8. 

112/d. 

ii3/<i.  ch.  19,  §  19.02,  pt.5,  at  43. 


1973]  COMMENTS  501 

falling,  even  though  the  blood  contains  the  same  percentage  of  alcohol.114 
Also,  the  individual's  tolerance  to  alcohol  is  a  factor.  Not  only  are 
different  individuals  affected  in  varying  degrees  by  alcohol,  but  the  same 
individual  may  also  experience  different  effects  from  the  same  amount 
of  alcohol  on  different  occasions.    One  commentator  has  stated: 

Tolerance  is  the  [ability]  of  the  organism  to  withstand  the  ef- 
fects of  alcohol.  It  may  differ  from  one  individual  to  another. 
Thus  the  same  level  of  alcohol  in  the  blood  may  not  have  the 
same  effect  in  two  different  people.  .  .  .  Apart  from  the  above 
differences  in  inherent  tolerance  as  between  individuals,  an 
appreciable  tolerance  occurs  in  the  same  person  on  exposure  to 
alcohol,  even  within  the  short  period  of  a  single  episode  of  in- 
toxication. In  America,  with  very  few  exceptions,  this  tempo- 
rary tolerance  is  being  completely  ignored.115 

If  a  blood  sample  is  being  taken  under  the  provisions  of  the  Act, 
section  8175-17  provides  that  it  may  be  done  only  by  a  physician,  morti- 
cian, registered  nurse,  or  clinical  laboratory  technologist  or  technician. 
Section  8175-19  further  provides  that  if  a  urine  specimen  is  being  taken, 
the  privacy  and  dignity  of  the  individual  is  to  be  respected  as  much  as 
possible  while  still  assuring  the  reliability  of  the  specimen. 

Section  8175-16  requires  that  any  chemical  test  must  be  given  in 
accordance  with  the  methods  approved  by  the  State  Board  of  Health  and 
the  Commissioner  of  Public  Safety.  The  Board  and  the  Commissioner 
must  also  prescribe  the  requirements  for  permits  to  test  and  issue  such 
permits.  Only  state  highway  patrolmen,  sheriffs  or  their  deputies,  and 
city  policemen  are  eligible  for  permits  to  operate  the  intoximeter.  The 
State  Board  of  Health  is  responsible  for  making  periodic  checks  of  both 
the  accuracy  of  the  machines  and  the  competency  of  the  operators.116 


114/d.  ch.  16,  §  16.04,  pt.2,  at  19. 
ii5/d.  at  22. 

nsLetter  from  Ernie  Albritton,  Representative,  Governor's  Highway  Safety  Pro- 
gram, to  Samuel  R.  Hammond,  Feb.  8,  1973,  which  states: 

In  order  for  an  enforcement  officer  to  become  eligible  for  training,  he  must 
make  a  passing  score  on  a  mental  aptitude  test,  administered  by  the  State 
Board  of  Health.  Upon  passing,  he  is  then  enrolled  in  the  Implied  Consent 
Class  at  the  Mississippi  Law  Enforcement  Academy  for  a  forty  (40)  hour 
course  of  study.  This  includes  background  study  on  how  the  machine  was 
built,  principles  and  scientific  laws  which  provide  accurate  and  precise 
measurements,  procedures  of  arrest  and  test,  record  keeping  and,  of  course, 
operation.  After  passing  an  examination  on  the  studies,  the  men  are  certified 
by  the  Department  of  Health  as  operators  of  the  intoximeter.  The  basic 
studies  are  important  knowledge  needed  in  court  testimony. 

Each  machine  is  calibrated  at  least  once  a  month,  and  each  operator  is 
retested  in  the  field,  at  least  once  every  three  months. 


502  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

V.     Consent  to  the  Test  and  the  Test  Results 

If  the  motorist  consents  to  take  the  chemical  test,  he  is  not  subject 
to  any  administrative  penalties.  Section  8175-15  provides  for  the  admissi- 
bility in  criminal  actions  of  presumptions  that  shall  arise  from  certain 
alcohol  percentages  in  the  motorist's  blood.  The  alcohol  content  used  is 
that  at  the  time  of  the  test  and  not  the  projected  content  at  the  time  of 
arrest.117  If  the  alcohol  in  the  blood  is  less  than  .10  percent  by  weight, 
the  motorist  is  presumed  not  to  have  been  under  the  influence  of  in- 
toxicating liquor.  If  the  alcohol  weight  is  .10  percent  or  more,  but  less 
than  .15  percent,  the  motorist  is  presumed  to  have  been  driving  under 
the  influence  and  is  subject  to  the  punishment  set  forth  in  section  8175- 
05.118  If  the  motorist  has  an  alcohol  weight  of  .15  percent  or  more,  he 
is  presumed  to  have  been  driving  while  intoxicated,  and  upon  conviction 
is  subject  to  the  punishment  set  forth  in  section  8175-06.119  The  new 
federal  standards  require  that  driving  while  their  is  .10  percent  alcohol 
in  the  blood  be  illegal  in  itself.  The  federal  requirement  does  not  allow 
a  differentiation  between  "driving  while  intoxicated"  and  "driving  under 
the  influence."120  The  federal  standard  seems  the  best  policy  since  most 
authorities  feel  that  substantial  driving  impairment  occurs  even  below 
.10  percent  alcoholic  content  of  the  blood.121 

wSee  note  33  supra. 

ii8Section  8175-05  of  the  Act  provides  that  the  first  offense  for  driving  under 
the  influence  shall  be  punished  by  imprisonment  of  not  more  than  6  months  or  a 
fine  of  not  less  than  50  dollars  nor  more  than  500  dollars.  The  court  does  not  have 
to  levy  any  imprisonment  since  there  is  no  minimum  requirement;  however,  a  fine  of 
50  dollars  must  be  assessed  as  a  minimum.  The  use  of  the  word  "or"  would  indicate 
that  both;  a  fine  and  imprisonment  cannot  be  given. 

A  second  offense  in  a  2-year  period  for  driving  under  the  influence  may  be 
punishable  by  imprisonment  for  10  days  to  1  year  and  shall  be  punished  by  a  fine  of 
not  less  than  100  dollars  nor  more  than  1,000  dollars.  Here  both  penalties  may  be 
assessed  while  a  minimum  fine  of  100  dollars  must  be  assessed.  Furthermore,  the 
second  offense  in  a  2-year  period  shall  be  punished  by  a  1-year  revocation  of  the 
driver's  license. 

^Section  8175-06  provides  the  same  punishment  for  driving  while  intoxicated 
as  is  provided  for  the  second  offense  in  a  2-year  period  for  driving  under  the 
influence. 

izoSee  note  3  supra. 

121B.  Freeman,  Drunk  Driving  Cases:  Prosecution  And  Defense  198  (Practising 
Law  Institute  1970) ,  quoting  from  Comment,  The  Drinking  Driver:  An  Approach  To 
Solving  A  Problem  Of  Underestimated  Severity,  14  Vill.  L.  Rev.  97,  100  (1968) . 
which  states:  . 

The  subjects  showed  some  impairment  of  performance  relative  to  the  control 
group  at  the  .05  percent  alcohol  level.  .  .  .  Studies  testing  performances  in 
"roadeo"  or  driving-hazard  courses  in  Missouri  and  Kansas  found  that  sub- 
jects were  noticeably  impaired  at  an  alcohol  level  of  .08  percent,  and  similar 


1973]  COMMENTS  503 

The  Mississippi  Act  limits  the  use  of  the  statutory  presumptions  of 
intoxication  to  "the  trial  of  any  criminal  action  arising  out  of  acts  al- 
leged to  have  been  committed  by  any  person  while  driving  a  vehicle 
while  under  the  influence  of  intoxicating  liquor.  .  .  ,"122  This  is  a  wider 
use  of  the  presumptions  than  many  states  which  allow  their  use  only  in 
criminal  actions  for  driving  while  intoxicated.123  Some  jurisdictions, 
however,  place  no  restrictions  on  the  use  of  the  statutory  presumptions.124 

The  statutory  presumption  of  intoxication  is  rebuttable,  but  as  a 
practical  matter  will  be  hard  to  overcome.125  Presumptions  of  intoxica- 
tion have  been  held  not  to  destroy  the  constitutional  presumption  of 
innocence.126  Statutes  which  make  it  a  crime  to  drive  with  a  certain  per- 
cent of  alcohol  in  the  blood  have  even  been  upheld.127  Even  if  the 
statute  only  provides  for  a  presumption  of  intoxication  with  the  test 
result  alone  being  sufficient  to  convict,  the  same  result  is  reached.128 
It  will  be  a  rare  situation,  however,  when  the  test  result  is  the  only 
prosecution  evidence.  Since  there  has  to  be  probable  cause  to  believe 
the  suspect  was  driving  under  the  influence  of  alcohol,  there  should  be 
corroborative  testimony  available.129 

The  Mississippi  Act  provides  that  the  results  of  the  test  may  be  freely 
obtained  by  the  motorist  or  his  attorney.130  The  result  may  not  be  used 
by  any  insurance  company  to  affect  coverage,  but  the  statute  does  not 

tests    in    Ontario    indicated    an    impairment    to    most    subjects    at    the    .03 

percent  level.  An  interesting  British  experiment  found  that  three  experienced 

Manchester  bus  drivers,  after  consuming  two  ounces  of  alcohol,  tried  to  drive 

their  buses  through  an  opening  14  inches  narrower  than  their  buses. 

122M1SS.  Code  Ann.  §  8175-15  (Supp.  1972) .  This  section  restricts  the  use  of 
the  statutory  presumptions.  Section  8175-23  provides  that  the  test  result  shall  not  be 
admissible  in  civil  actions.  It  would  seem  that  the  test  results  may  be  admissible  in 
any  criminal  action,  while  the  statutory  presumptions  of  intoxication  based  upon  the 
test  result  are  applicable  only  in  criminal  trials  for  acts  committed  while  driving 
under  the  influence  of  liquor. 

i23£.g.,  Ga.  Code  Ann.  §  68-1625  (b)    (Supp.  1972) . 

i24£.g.,  Me.  Rev.  Stat.  Ann.  tit  29,  §  1312  (Supp.  1972) . 

i25£.g.,  state  v.  Larrabee,  156  Me.  115,  161  A.2d  855  (1960) ;  State  v.  Magai,  96 
N.J.  Super.  109,  232  A.2d  477    (1967) . 

i26£.gv  Varner  v.  State,  493  P.2d  452  (Okla.  Crim.  App.  1972)  ;  Johnson  v.  State, 
487  P.2d  1005    (Okla.  Crim.  App.  1971)  . 

i27in  Coxe  v.  State,  281  A.2d  606  (Del.  1971) ,  a  statute  which  made  the  offense 
to  drive  with  .10  percent  alcohol  content,  rather  than  just  establishing  a  presumption 
of  driving  while  intoxicated,  was  upheld. 

i285ee,  e.g.,  State  v.  Johnson,  42  N.J.  146,  199  A.2d  809   (1964). 

i29Considering  the  margins  of  error  in  the  testing  devices  and  the  discrepancy 
between  individuals,  there  is  support  for  requiring  corroborative  evidence  in  addition 
to  the  test. 

isomiss.  Code  Ann.  §  8175-20   (Supp.  1972) . 


504  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

specifically  prohibit  a  change  of  rates  as  a  result  of  a  test.131  The  pro- 
tection of  those  individuals  qualified  under  section  8175-17  to  administer 
the  blood  test  is  provided  in  section  8175-21.  They  are  not  to  be  held 
liable  in  any  criminal  or  civil  proceeding  for  a  properly  administered 
test  ordered  in  writing  by  a  law  enforcement  official.132 

VI.     Conclusion 

Mississippi  has  joined  the  rest  of  the  states  in  the  battle  against 
drunken  driving.  The  major  tactics  at  present  are  criminal  sanctions. 
The  Mississippi  Implied  Consent  Act  enables  law  enforcement  agencies 
to  gather  reliable,  scientific  evidence  with  which  to  prosecute  the  drunk 
driver.  It  also  penalizes  those  who  refuse  to  take  the  test.  It  must  be 
concluded,  however,  that  the  Mississippi  Act  appears  to  be  a  weak,  and 
perhaps  even  ineffective  weapon  in  the  battle  against  drunken  driving. 
The  weakness  of  the  Act  could  result  in  the  loss  of  a  portion  of  the 
state's  federal  highway  funds.  For  the  safety  of  its  citizens  and  the  con- 
tinued progress  of  its  highway  system,  the  Mississippi  Legislature  should 
bring  the  Implied  Consent  Act  into  full  compliance  with  federal  stand- 
ards issued  by  the  United  States  Department  of  Transportation.133  This 
would  include: 

(1)  Providing  that  .10  percent  alcoholic  content  is  illegal.  This 
should  be  the  only  level  sanctioned  as  illegal  and  should  embody  the 
penalties  presently  employed  for  those  found  guilty  of  driving  while 
intoxicated  as  presumed  from  alcoholic  content  of  .15  percent  or  more. 

(2)  Authorizing  law  enforcement  officials  to  make  warrantless  mis- 
demeanor arrests  for  traffic  violations  not  committed  in  the  arresting 
officer's  presence.  This  would  be  especially  valuable  in  accidents  and 
circumstances  involving  unconscious  drivers. 

(3)  Increasing  the  penalty  for  refusing  to  take  the  test  to  a  6-month 
revocation,  rather  than  suspension,  of  the  driver's  license.  In  this  way 
the  state  would  have  some  control  over  the  reinstatement  of  the  driver's 
license. 

The  invocation  of  the  fourth  requirement  of  the  new  federal  stand- 
ards is  not  as  clearly  desirable  as  the  first  three.  Requiring  a  motorist 
to  submit  to  an  alcohol  test  prior  to  his  arrest  or  at  least  prior  to  the 

isi/d.  §  8175-25. 

i32At  the  time  of  this  writing  Senate  bill  1744  was  being  considered  by  the  1973 
session  of  the  Mississippi  Legislature.  This  bill  would  extend  protection  from 
liability  for  blood  tests  administered  at  the  direction  of  law  enforcement  officers  to 
hospitals,  hospital  trustees,  clinics,  and  funeral  homes. 

i33£e<?  note  3  supra. 


1973]  COMMENTS  505 

manifestation  of  probable  cause  for  arrest  is  constitutionally  question- 
able.134 To  "screen"  motorists  indiscriminately  would  be  an  invasion  of 
constitutionally  protected  rights.135  It  seems  unquestionable  that  any 
test  to  determine  the  alcoholic  content  of  an  individual's  blood  would 
be  a  search  protected  by  the  fourth  amendment.  Nevertheless,  at  least 
one  state,  New  York,  has  provided  for  pre-arrest  testing.136  The  New 
York  test  is  not  an  indiscriminate  screening  of  all  cars,  but  merely  a 
testing  upon  grounds  somewhat  less  than  probable  cause.  The  argument 
for  this  procedure  is  analogized  to  the  rationale  of  the  Supreme  Court 
in  the  case  of  Terry  v.  Ohio,137  in  which  the  "stop  and  frisk"  principle 
was  established.  The  justification  for  "stop  and  frisk"  is  protection  of 
the  policeman:  the  frisk  is  only  for  weapons  with  which  the  suspect  may 
escape  or  harm  the  officer.  To  equate  the  protection  of  the  public  to 
the  protection  of  an  individual  police  officer  confronting  a  suspicious 
man  is  at  least  questionable. 

Regardless  of  the  outcome  of  the  constitutionality  of  pre-arrest  test- 
ing, Mississippi  should  at  least  use  the  full  extent  of  preliminary  testing 
authorized  by  the  Mississippi  Act.  Based  upon  a  preceding  arrest, 
section  81750-09  authorizes  a  preliminary,  unofficial  breath  test. 
Preliminary  testing  decentralizes  the  testing  procedure  and  increases  the 
effectiveness  of  implied  consent,138  and  law  enforcement  officers  will  be 
more  willing  to  test  motorists  if  they  are  able  to  give  an  "on-the-spot" 
test.  The  portable  breath  test,  called  the  "balloon"  test,  is  not  accurate 
enough  for  the  conclusive  evidence  needed  for  a  criminal  conviction, 
although,  it  can  inform  officers  when  people  who  are  not  showing  out- 

i34in  Schmerber  v.  California,  384  U.S.  757  (1966) ,  the  Supreme  Court  held  that 
the  taking  of  a  blood  sample  was  a  search  as  governed  by  the  fourth  amendment 
of  the  United  States  Constitution.  No  case  has  held  that  taking  a  breath  sample  is 
not  also  a  search,  therefore,  the  search  must  be  either  based  upon  a  warrant  or 
incident  to  a  lawful  arrest.  An  argument  for  the  validity  of  a  pre-arrest  breath 
test  could  be  made  by  contending  that  it  is  not  a  search  and,  like  a  driver's  license 
check,  is  not  restricted  by  the  fourth  amendment.  In  Holland  v.  Parker,  469  F.2d 
1013  (8th  Cir.  1972) ,  a  federal  district  judge  was  reversed  for  failing  to  convene 
a  three-judge  court  to  hear  a  challenge  of  the  South  Dakota  implied  consent 
statute.  The  Court  of  Appeals  stated: 

We  believe  it  is  not  unreasonable  for  the  plaintiff  to  argue  that  due  process 

does  require  a  lawful  arrest  as  a  precondition  to  application  of  the  statute  to 

protect  the  driver  against  arbitrary  police  conduct  and  to  protect  the  driver's 

Fourth  Amendment  rights. 
Id.  at  1015.  See  also  1971  Duke  L.J.  601. 

i355ee  Katz  v.  United  States,  389  U.S.  347   (1967) . 

136N.Y.  Veh.  and  Traf.  Law  §  1193-a  (1970).  But  see  Schutt  v.  Macduff,  205 
Misc.  2d  43,  127  N.Y.S.2d  116    (Sup.  Ct.  1954). 

137392  U.S.  1  (1968)  .  See  also  Hunvald  &  Zimring,  What  Ever  Happened  to  Implied 
Consent?  A  Sounding,  33  Mo.  L.  Rev.  323  (1968) ;  35  Albany  L.  Rev.  455,  457   (1971) . 


506  MISSISSIPPI  LA  W  JO URNAL  [vol.  44 

ward  signs  of  intoxication  should  be  taken  in  for  testing  on  the  photo- 
electric intoximeter.  The  officer  may  be  detained  for  hours  when  he  has 
to  take  a  motorist  to  a  central  testing  location.  The  officer  will  be  more 
apt  to  take  the  motorist  in  when  he  has  given  the  motorist  the  prelimi- 
nary test  and  it  has  registered  the  motorist  as  intoxicated.  This  proce- 
dure also  protects  the  motorist.  Although  informally  arrested,  the  motor- 
ist has  not  been  booked  or  cited.  If  he  registers  no  intoxication  the 
officer  may  simply  release  him.  According  to  a  representative  from  the 
Governor's  Highway  Safety  Program,  Mississippi  used  a  preliminary 
"balloon"  test  in  1972.  Although  this  decentralization  of  testing  should 
increase  the  effectiveness  of  the  Implied  Consent  Act,  for  some  reason 
the  preliminary  test  has  been  discontinued  in  1973,  except  in  one  dis- 
trict where  it  is  being  used  experimentally. 

In  addition  to  the  adoption  of  the  three  federal  requirements  and 
the  need  for  a  return  to  decentralized,  preliminary  testing,  two  additional 
flaws  exist  in  the  Mississippi  act.  First,  the  Mississippi  administrative 
hearing  procedure  may  be  unconstitutional.  Even  if  temporary  pre- 
hearing license  suspension  is  upheld  on  the  emergency  exception,  it  is 
doubtful  that  the  suspension  can  be  continued  without  a  hearing  after 
the  intoxication  has  ceased  to  exist.  The  very  minimal  restriction  on 
state  action  will  probably  be  a  requirement  to  notify  the  motorist  of  his 
right  to  a  hearing.  The  second  additional  flaw  in  the  Act  is  the  failure 
to  recognize  that  suspension  of  the  license  is  a  penalty  for  not  submitting 
to  the  test  and  is  in  no  way  related  to  whether  the  motorist  was  driving 
while  intoxicated.  Automatic  reinstatement  of  the  motorist's  license 
upon  acquittal  of  the  criminal  charge  will  render  the  Act  ineffective 
when  the  populace  realizes  they  are  in  a  better  position  by  refusing  the 
test.  If  the  administrative  penalty  for  refusing  the  test  is  changed  to 
revocation  and  the  time  increased  from  90  days  to  180  days  as  required 
by  the  federal  standards,  the  incentive  to  take  the  test  will  be  increased. 
However,  with  the  time  increased  to  6  months,  the  motorist  will  know 
that  his  criminal  case  will  probably  be  heard  before  then.  He  may  still 
prefer  to  refuse  the  test  and  make  his  criminal  prosecution  more  difficult 
by  denying  the  state  the  reliable  evidence  of  a  chemical  test.  Under  the 
present  Mississippi  Act,  it  does  not  matter  if  the  license  is  suspended  or 
revoked  since  the  license  is  automatically  reinstated  if  the  motorist  is 
acquitted  of  the  criminal  charge  of  drunken  driving. 

The  ultimate  judgment  of  "implied  consent"  legislation's  effective- 
ness in  combating  drunk  driving  is  yet  to  be  made.  In  Mississippi  during 
1972,  9  months  of  which  were  under  the  Implied  Consent  Act,  the  death 
rate  on  state  highways  decreased  only  3  percent.  This  initial  period  of 
operation  should  not  be  accepted  as  conclusive  evidence  of  the  program's 


1973]  COMMENTS  507 

effectiveness.  According  to  statistics  provided  by  the  Governor's  High- 
way Safety  Program,  the  deaths  during  the  first  3  months  of  1971  were 
204,  compared  to  220  for  the  first  3  months  of  1972.  After  the  Act  went 
into  effect  on  April  1,  1972,  the  total  number  of  deaths  in  the  remaining 
nine  months  was  702,  compared  to  747  for  the  last  9  months  of  1971. 
Comparing  the  9-month  period  of  1972  when  the  Act  was  in  effect  with 
the  last  9  months  of  1971  reveals  a  6  percent  decrease  in  fatalities.  There 
were  no  statistics  on  non-fatal  crashes  available.  Also,  no  statistics  on 
drunken  driving  convictions  were  available,  but  one  state  official  in- 
volved with  the  program  said  that  there  were  not  only  more  convictions 
for  drunken  driving  per  arrest,  but  there  were  also  more  arrests.  After  an 
exhaustive  statistical  study  in  Missouri,  one  commentator  concluded  by 
saying: 

So  very  little  is  known  about  the  various  countermeasures  that 
the  assumption  that  this  (implied  consent  legislation)  or  any 
other  strategy  is  effective  is  largely  a  matter  of  faith.  There  is 
an  immediate  need  to  find  out  whether  such  faith  is  justified. 
In  sum,  implied  consent  helps  to  rationalize  the  administration 
of  a  process  whose  central  tenets  remain  unexamined  and  un- 
proved. Given  present  information  about  the  magnitude  of  the 
problem  of  drunk  driving,  and  the  present  assumptions  about 
appropriate  drunk-driving  policies,  implied  consent  is  a  modest 
improvement  and  seems  worth  its  cost.139 

While  Mississippi  must  surely  strengthen  its  Implied  Consent  Act, 
it  must  also  continue  to  search  for  other  solutions  to  the  problem  of 
drunk  driving.140  Those  individuals  found  driving  while  intoxicated 
must  not  only  be  penalized  and  removed  from  the  road,  but  they  must 
also  be  treated  and  hopefully  rehabilitated.141    To  deny  the  use  of  the 

issHunvold  &  Zimring,  supra  note  137,  at  323. 
139/d.  at  399   (emphasis  added) . 

1405^  e.g.,  F.  Gradd,  Alcoholism  and  the  Law  (1971) ;  Borkenstein,  Alcoholism 
and  Law  Enforcement,  9  Crime  and  Delinquency  84  (1963)  ,  reprinted  in  Practis- 
ing Law  Institute,  Drunk  Driving  Cases  135  (B.  Freeman  ed.  1970)  ;  Comment, 
The  Drinking  Driver:  An  Approach  to  Solving  a  Problem  of  Underestimated  Severity, 
14  Vill.  L.  Rev.  97  (1969). 

i4i  Mississippi  appears  to  be  moving  in  the  direction  of  rehabilitation.  The 
following  is  taken  from  a  letter  from  Mr.  Ernie  Albritton,  Representative,  Governor's 
Highway  Safety  Program,  to  Samuel  R.  Hammond,  Jr.,  Feb.  8,  1973: 

We  have  begun  D.W.I.  Education  Programs  in  Starkville  and  Tupelo,  with 
immediate  plans  for  Gulfport,  Hattiesburg  and  Meridian  by  March  1,  1973. 
From  that  point,  we  will  proceed  to  other  areas  as  soon  as  possible.  Our 
target  is  nine  schools  in  operation  by  July  1,  1973.  These  programs  involve 
four  agencies.  They  are,  the  Governor's  Highway  Safety  Program,  Mississippi 
State  University  Department  of  Sociology,  Mississippi  Highway  Safety  Patrol 
Driver  Improvement  Bureau,  and  the  Health  Department's  Alcoholism  and 
Alcohol  Abuse  Program. 


508  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

automobile  to  an  individual  in  today's  highly  mobile  society  is  tanta- 
mount to  rendering  him  totally  unproductive  and  will  only  add  to  his 
problems.  However,  the  protection  of  other  drivers  must  also  be  con- 
sidered. Furthermore,  the  death  and  destruction  wrought  by  intoxicated 
drivers  is  by  no  means  caused  solely  by  the  problem  drinker.  "Solid  citi- 
zens" drive  this  state's  highways  each  and  every  day  with  some  physical 
impairment  from  alcohol.  A  thorough  alcohol  education  program  is 
essential.  The  education  of  dangers  of  alcohol  and  its  disastrous  impair- 
ment of  driving  ability  not  only  must  begin  in  the  schools,  but  it  must 
reach  much  further.  The  adult  populace  must  be  informed  also.  Less 
than  .10  percent  alcohol  level  is  needed  for  an  impairment  of  driving 
ability  which  can  be  fatal  to  both  the  drinker  and  those  who  travel  the 
roads  of  this  state  with  him.  Each  person  should  have  the  opportunity 
to  test  his  tolerance  to  alcohol  and  its  effect  on  his  motor  functions.  The 
level  of  alcohol  content  for  safe  use  of  an  automobile  is  considerably  less 
than  the  sanctions  of  law.  A  startling  illustration  of  the  physical  impair- 
ment at  alcohol  levels  for  below  those  made  illegal  by  law  is  the  British 
report  of  three  experienced  bus  drivers  who.  after  the  equivalent  of  less 
than  two  one-jigger  drinks  of  alcohol,  tried  to  drive  through  an  opening 
14  inches  narrower  than  the  bus  they  were  driving.142  Mississippi  must 
increase  its  effectiveness  in  the  battle  to  reduce  the  death,  destruction, 
and  sorrow  caused  by  combining  the  use  of  the  automobile  with  the 
use  of  alcohol  through  the  establishment  of  a  strong  implied  consent 
law  and  a  willingness  to  search  for  new  programs  of  rehabilitation  and 
prevention  through  education. 

Samuel  Robert  Hammond,  Jr. 

Briefly,  here  is  a  resume  of  the  school.  It  is  a  ten  (10)  hour  course,  meeting 
one  night  a  week  for  two  and  one  half  (2\/2)  hours  for  four  (4)  consecutive 
weeks.  The  session  consists  of  films  and  instructions  concerning  physiological 
and  psychological  effects  of  alcohol  in  traffic  safety.  When  cited,  the  offender 
appears  before  the  judge  and  is  offered  the  opportunity  to  attend  this  school. 
If  the  offender  chooses  this  program,  he  must  pay  a  $30.00  fee,  adhere  to  the 
rules  of  the  class,  and,  upon  completion  return  to  the  judge  for  final  disposi- 
tion of  his  case.  Usually,  the  fine  will  be  the  customary  fine  that  the  judge 
used  for  this  charge,  but,  rather  than  revoke  his  driver's  license,  he  may  reduce 
the  charge  to  D.U.I,  to  avoid  revocation.  This  refers  to  first  offenders  only, 
because   on    second    offense    the  Ti cense   is   revoked. 

If  the  offender  chooses  not  to  attend  this  school,  disposition  is  made  im- 
mediately which   should  result  in  revocation. 

After  completion  of  this  course,  we  anticipate  the  follow  up  on  the  individual 
who  decides  he  has  an  alcohol  problem  and  needs  more  help,  to  be  carried 
out  by  the  Alcoholism  and  Alcohol  Abuse  Program. 
uzSee  note  121  supra. 


1973]  COMMENTS  509 

THE  USE  OF  PRIOR  CONVICTIONS  FOR  IMPEACHMENT 
IN  MISSISSIPPI 

Introduction 

At  common  law,  conviction  for  treason,  felony,  or  misdemeanor  in- 
volving either  improbity  or  obstruction  of  justice  constituted  grounds 
for  objection  to  the  competency  of  a  witness  to  testify  at  all.1  Except  in 
cases  of  perjury  and  subornation  of  perjury,  the  Mississippi  Legislature 
has  removed  this  disqualification,  and  persons  formerly  convicted  of 
crimes  are  now  competent  to  testify  in  all  proceedings.2  For  the  old  pro- 
cedure, the  legislature  substituted  a  right  to  cross-examine  witnesses  with 
respect  to  their  prior  convictions  for  the  jury's  consideration  on  the  issue 
of  credibility.3  The  ultimate  purpose  of  cross-examination  for  impeach- 
ment purposes,  from  the  standpoint  of  the  cross-examiner,  is  to  persuade 
the  jury  that,  because  of  his  prior  convictions,  the  witness  is  unworthy 
of  belief.4 

The  cross-examiner's  right  to  inquire  as  to  the  prior  criminal  convic- 
tions of  a  witness  extends  both  to  civil5  and  criminal  cases.6  In  Missis- 
sippi, the  fact  that  the  witness  sought  to  be  impeached  is  the  defendant 
in  a  criminal  prosecution  places  no  special  restriction  on  the  right  to 
cross-examination  with  respect  to  prior  convictions.7  Consequently,  mo- 
tions  designed   to   prevent   such   cross-examination   should    be   denied.8 


iMcCormick's  Handbook  of  the  Law  of  Evidence  §  43,  at  84-85  (2d  ed.  E.  Cleary 
1972)  [hereinafter  cited  as  McCormick];c/.  Wetzel  v.  State,  225  Miss.  450,  76  So.  2d  188 
(1954)     (dictum)  . 

2Miss.  Code  Ann.  §  1692  (1956)  ;Keithler  v.  State,  18  Miss.  (10  S.&.M.)  192 
(1848)  . 

sMiss.  Code  Ann.  §   1693    (1956)    provides  in  pertinent  part: 

Any  witness  may  be  examined  touching  .  .  .  his  conviction  of  any  crime,  and 

his  answers  may  be  contradicted,  and  ...  his  conviction  of  a  crime  established 

by  other  evidence;   and  a  witness  shall  not  be  excused  from   answering  any 

question,    material    and    relevant;     unless    the    answer    would    expose    him 

to  criminal  prosecution  or  penalty. 

•*Benedetti  v.  State,  249  So.  2d  671  (Miss.  1971)  ;  Parrish  v.  State,  237  Miss.  37, 
112  So.  2d  548  (1959);  Hassell  v.  State,  229  Miss.  824,  92  So.  2d  194  (1957);  Wetzel 
v.  State,  225  Miss.  450,  76  So.  2d  188  (1954) ;  Phillips  v.  State,  214  Miss.  287,  43  So. 
2d  208  (1949)  ;  Hegwood  v.  State,  206  Miss.  160,  39  So.  2d  865  (1949)  ;  Randolf  v. 
State,  152  Miss.  48,  118  So.  354  (1928);  Williams  v.  State,  87  Miss.  373,  39  So. 
1006    (1906)  . 

5E.g.,  Strathara  v.  Blaine,  234  Miss.  649,  107  So.  2d  93  (1958)  ;  Brister  v.  Dunaway, 
149  Miss.  5,  115  So.  36    (1927). 

&E.g.,  Benedetti  v.  State,  249  So.  2d  671    (Miss.  1971)  . 

'Williams  v.  State,  87  Miss.  373,  39  So.  1006    (1906)  . 

sSaucier  v.  State,  259  So.  2d  484    (Miss.  1972) . 


51 0  MISSISSIPPI  LA  W  JO  URN  A  L  [vol.  44 

When  the  accused  or  any  witness  takes  the  stand  to  testify,  his  credibility 
is  thereby  placed  in  issue  and  is  subject  to  attack.9 

The  existence  of  the  statute  authorizing  cross-examination  on  the 
subject  of  prior  convictions  for  impeachment  raises  a  number  of  ques- 
tions, not  all  of  which  have  been  answered  by  the  Mississippi  Supreme 
Court.  Perhaps  the  threshold  question  is  simply:  what  is  a  conviction? 
Are  arrest  records  or  criminal  charges  convictions  under  the  statute? 
Further,  at  what  point  in  time  can  it  be  said  that  a  witness  has  been 
convicted?  Assuming  a  witness  has  been  convicted,  what  convictions  may 
be  used  for  impeachment?  How  extensive  an  examination  is  permissible? 
In  resolving  these  questions  in  this  comment,  reference  will  be  made  to 
Mississippi  statutes  and  case  law  where  a  rule  has  already  developed  in 
this  state.  In  those  areas  where  the  Supreme  Court  has  not  yet  ruled, 
reference  will  be  made  to  treatises  and  case  law  from  other  jurisdictions 
in  order  to  present  the  alternatives  available,  together  with  arguments 
for  and  against  each  alternative. 

I.     The  Requirement  of  Conviction 

A.     Criminal  Charges 

While  the  Mississippi  statute  makes  no  specific  mention  of  the  use 
of  arrest  records  or  criminal  charges  for  impeachment,10  attorneys  have 
sought  on  numerous  occasions  to  introduce  such  evidence  under  the 
statute  authorizing  impeachment  as  to  prior  conviction.11 

This  form  of  impeaching  evidence  is  subject  to  three  objections. 
Some  authorities  have  pointed  out  the  unreliability  of  arrest  records  and 
indictments  as  indications  of  misconduct.  The  basis  of  this  objection  is 
that  the  fact  of  arrest  or  indictment  is  not  in  itself  inconsistent  with 
innocence  but  constitutes  a  mere  hearsay  assertion  as  to  the  guilt  of  a 
witness.12  In  addition,  there  exists  the  possibility  of  a  full-scale  dispute 
developing  over  whether  the  witness  actually  misbehaved.  If  such  a  dis- 
pute were  to  arise,  the  policy  considerations  against  the  allowance  of 
extrinsic  evidence  of  misconduct  appear  applicable.  These  policies  in- 
clude confusion  of  the  issues  before  the  jury  and  undue  lengthening  of 
the  trial.13  The  exception  to  the  general  rule  prohibiting  the  use  of  such 

sMiss.  Code  Ann.  §  1693  (1956) ;  Abies  v.  State,  223  Miss.  770,  79  So.  2d  241 
(1955) ;  Mississippi  Ice  &  Util.  Co.  v.  Pearce,  161  Miss.  252,  134  So.  164,  167   (1931) . 

ioMiss.  Code  Ann.  §  1693   (1956) . 

"E.g.,  Turberville  v.  State,  179  So.  340   (Miss.  1938) . 

i23A.  J.  Wigmore,  Evidence  §  980a,  at  835  (Chadbourn  rev.  ed.,  1970)  [hereinafter 
cited  a§  Wigmore]. 

i3/rf.  §  979,  at  826. 


1973]  COMMENTS  511 

extrinsic  evidence,  which  exists  in  the  case  of  impeachment  by  prior 
conviction,  lies  in  the  fact  that  the  judgment  of  conviction  provides  re- 
liable, legally  unquestionable  evidence  of  actual  misconduct.14  These 
two  elements  of  reliability  and  indisputability  being  absent,  such  in- 
quiries should  not  be  permitted  under  the  general  rule  relating  to  ex- 
trinsic evidence  of  misconduct.  Similar  considerations  have  moved  many 
courts  to  forbid  questioning  designed  to  demonstrate  the  existence  of 
prior  arrests  or  indictments.15 

In  Mississippi,  an  additional  argument  presents  itself  for  barring 
inquiries  into  former  arrests  or  indictments.  The  supreme  court  has 
repeatedly  held  that,  at  least  in  the  case  of  defendant-witnesses,  the 
statute  authorizing  cross-examination  as  to  prior  convictions  must  be 
strictly  construed.16  Since  the  statute  does  not  explicitly  grant  the  right 
to  inquire  as  to  such  matters,17  it  may  be  argued  that  such  matters  fall 
within  the  general  proscription  against  the  use  of  extrinsic  evidence  on 
this  basis. 

On  the  basis  of  such  considerations,  the  supreme  court  has  repeated- 
ly reaffirmed  its  long-standing  prohibition  against  the  use  of  former 
indictments  for  impeachment  of  credibility.18  Applying  similar  reason- 
ing to  the  use  of  censures  by  the  grand  jury,  the  supreme  court  has  also 
forbidden  their  use  for  impeachment.19  While  there  are  no  Mississippi 
cases  dealing  with  the  use  of  arrest  records  for  impeachment  purposes, 
such  records  seem  subject  to  the  same  objections  which  have  moved 
courts  to  ban  the  use  of  indictments  for  impeachment.  Like  indictments, 
arrests  may  be  characterized  as  hearsay  assertions  of  guilt  which  are  not 
inconsistent  with  good  conduct  and  which  are  therefore  not  sufficiently 
reliable  as  indicators  of  actual  misconduct.20  Further,  arrests  are  not 
explicitly  authorized  in  the  statute,  and  the  doctrine  of  strict  construc- 
tion would  seem  to  demand  that  they  be  held  inadmissible.21    For  these 

14/d.  §  980. 

isAnnot.,  20  A.L.R.2d  1421,  1425  (1951) ;  e.g.,  Parker  v.  State,  280  Ala.  685,  198 
So.  2d  261   (1967) . 

"Murray  v.  State,  266  So.  2d  139  (Miss.  1972) ;  Johns  v.  State,  255  So.  2d  322 
(Miss.  1971) ;  Berry  v.  State,  212  Miss.  164,  54  So.  2d  222   (1951)  . 

i7Miss.  Code  Ann.  §  1693   (1956) . 

isGarraga  v.  Yellow  Cab  Co.,  222  Miss.  739,  77  So.  2d  276  (1955)  (dictum); 
Turberville  v.  State,  179  So.  340  (Miss.  1938);  Mars  v.  Hendon,  178  Miss.  157, 
171  So.  880  (1937) ;  Saucier  v.  State,  102  Miss.  647,  59  So.  858  (1912) ;  Starling  v. 
State,  89  Miss.  328,  42  So.  798   (1907)  . 

isBarlow  v.  State,  233  So.  2d  829,  832    (Miss.  1970). 

203A  Wigmore  §  980a. 

2iSee  Miss.  Code  Ann.  §  1693  (1956) ;  Murray  v.  State,  266  So.  2d  139  (Miss. 
1972);  Johns  v.  State,  255  So.  2d  322  (Miss.  1971);  Berry  v.  State,  212  Miss.  164,  54 
So.  2d  222   (1951) . 


512  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

reasons,  the  Mississippi  Supreme  Court  may  be  expected  to  rule  the  use 
of  arrest  records  to  be  impermissible  as  a  mode  of  impeachment  of 
credibility  through  prior  conviction. 

That  arrests  and  indictments  may  not  be  utilized  for  a  showing  of 
misconduct  for  impeachment  does  not  mean  such  evidence  is  inadmissible 
per  se.  In  McClelland  v.  State,22  a  witness,  who  had  been  jointly  indicted 
with  the  defendant  in  the  case  on  trial,  took  the  stand  to  testify  for  the 
defense.  On  cross-examination  by  the  prosecutor,  the  witness  was  asked 
over  objection  whether  he  had  been  jointly  charged  with  the  defendant 
in  the  case  on  trial.  In  holding  the  question  proper  as  showing  interest 
of  the  witness,  the  Mississippi  Supreme  Court  stressed  that  the  witness 
was  asked  only  whether  he  had  been  jointly  indicted  in  the  offense  on 
trial.23  The  court  reasoned  that,  even  though  the  witness  had  been  dis- 
charged by  the  committing  court,  he  might  have  been  motivated  not  to 
tell  the  truth  either  by  a  fear  of  further  prosecution  should  the  defendant 
be  found  guilty,  or  by  the  contrary  belief  that,  should  the  trial  result  in 
a  conviction,  the  matter  would  be  ended  from  his  standpoint.24  Thus, 
other  evidentiary  foundations  may  be  available  to  the  cross-examiner 
desiring  to  prove  the  existence  of  prior  arrests  and  indictments. 

B.     Necessity  of  Judgment 

The  foregoing  authorities  strongly  indicate  that  only  convictions 
may  be  utilized  for  impeaching  the  character  of  a  witness  by  showing 
prior  crimes.  These  cases  do  not,  however,  contain  any  explicit  indica- 
tion of  the  time  at  which  a  witness  has  been  convicted.  Many  Mississippi 
cases  have  permitted  impeachment  through  the  use  of  crimes  in  which 
judgment  and  sentence  have  been  rendered,25  but  there  is  a  paucity  of 
authority  in  this  state  for  the  use  of  offenses  upon  which  judgment  has 
not  been  rendered.  The  supreme  court  has  made  it  clear  that  withdrawn 
guilty  pleas  may  not  be  used  for  impeachment.26  Some  courts  have  faced 
the  question  of  whether  pleas  of  guilty,  guilty  verdicts,  and  pleas  of 
nolo  contendere  may  be  shown  where  no  judgment  has  been  entered. 

In  the  case  of  the  use  of  pleas  of  guilty  upon  which  judgment  has 
not  been  rendered,  some  courts,  adhering  to  a  strict  technical  definition 
of  "conviction,"  have  indicated  that  the  word  implies  judgment.27  Ac- 

2298  Miss.  735,  54  So.  251    (1911). 
md.  at  737,  54  So.  at  251. 
-Hd.  at  737-38,  54  So.  at  252. 

25£.g.,  Breland  v.  State,  221  Miss.  371,  73  So.  2d  267  (1954) . 
26White  v.  State,  202  Miss.  246,  30  So.  2d  894    (1947)  . 

27£.gv  Karasek  v.  Bockus,  293  Mass.  371,  199  N.E.  726  (1936)  ;  Commonwealth 
v.  Palarino,  168  Pa.  Super.  152,  77  A.2d  665   (1951) . 


1973]  COMMENTS  513 

cordingly,  these  courts  have  refused  to  sanction  the  use  of  guilty  pleas 
for  impeachment  in  the  absence  of  a  judgment.28  In  view  of  the  require- 
ment that  Mississippi  courts  accord  the  technical  meaning  to  technical 
words  in  statutes,29  there  is  some  support  for  this  approach  on  the  basis 
of  terminology  alone.  Other  courts  have  applied  a  less  stringent  defini- 
tion to  the  word  "conviction"  by  endorsing  the  practice  of  impeachment 
by  showing  a  prior  plea  of  guilty.30  These  courts  have  reasoned  that  the 
plea  should  be  admitted  because  a  conviction  is  equivalent  to  a  plea 
of  guilty.31 

Mere  terminology  should  not  be  the  only  consideration  in  statutory 
construction.  Attention  should  also  be  given  to  the  purpose  which  the 
legislature  sought  to  accomplish  through  the  enactment  of  the  statute.32 
In  the  case  of  statutes  relating  to  impeachment  by  showing  prior  convic- 
tion, the  legislature  sought  to  obviate  the  traditional  objections  to  the 
use  of  extrinsic  evidence  of  misconduct  by  providing  legally  unassailable 
evidence  of  actual  misconduct.33  This  purpose  is  achieved  through  the 
familiar  rules  relating  to  conclusiveness  of  judgments  which  prevent  the 
validity  of  the  conviction  from  being  questioned  in  collateral  proceed- 
ings.34 A  plea  of  guilty  without  judgment  thereon,  however,  constitutes 
an  admission  of  past  misconduct.35  Evidence  that  such  misconduct  did 
not  actually  take  place  would  be  admissible  to  controvert  the  plea.36 
The  process  of  introduction  of  the  plea  and  counter-introduction  of 
evidence  that  such  misconduct  did  not  take  place  raises  the  spectre  of 
issue  confusion  and  undue  lengthening  of  the  trial  which  the  entire 
mechanism  of  impeachment  by  prior  conviction  is  designed  to  prevent.37 
Therefore,  a  judgment  should  be  the  only  proper  means  of  evincing 
prior  misconduct  under  the  statute.  The  reasoning  in  White  v.  State38 
suggests  that  finality  of  the  proceeding  is  necessary  in  order  to  impeach 
a  witness  under  the  Mississippi  statute. 

With  regard  to  whether  a  plea  of  nolo  contendere  upon  which  judg- 
ment is  not  rendered  may  be  used,  a  similar  lack  of  mandatory  authority 

28£.g.,  Karasek  v.  Bockus,  293   Mass,  371,   199  N.E.  726    (1936)  ;    Commonwealth 
v.  Palarino,  168  Pa.  Super.  152,  77  A.2d  665    (1951)  . 
29Miss.  Code  Ann.  §  702   (1956)  . 

so£.g.,  State  v.  Tate,  2  Wash.  App.  241,  469  P.2d  999   (1970) . 
slE.g.,  id. 

MSee  Bubar  v.  Dizdar,  240  Minn.  26,.  60  N.W.2d  77   (1953)  . 
wSee  3A  Wigmore  §  980. 

34/d. 

354  Id.  §  1066  (4) . 

36/d. 

^See  3A  id.  §  980. 

38202  Miss.  246,  30  So.  2d  894   (1947)  . 


514  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

exists.  In  this  state,  pleas  of  nolo  contendere  are  permissible  under  cer- 
tain conditions,  but  only  in  misdemeanor  cases.39  Most  courts  have,  for 
impeachment  purposes,  held  that  convictions  based  upon  nolo  contendere 
pleas  are  admissible  in  the  same  manner  as  convictions  based  on  guilty 
pleas.40  These  courts  have  reasoned  that  such  pleas  are  substantially 
equivalent  to  guilt  pleas  and  constitute  an  implied  admission  of  guilt.41 
A  few  courts,  concerned  that  the  plea  is  an  admission  of  guilt  only  for 
the  purposes  of  the  proceeding  in  which  entered,  have  barred  the  use  of 
convictions  based  on  the  plea  for  impeachment.42  Like  the  plea  of  guilty 
upon  which  no  judgment  has  been  rendered,  pleas  of  nolo  contendere 
upon  which  there  is  no  judgment  are  regarded  as  inadmissible  for  im- 
peachment by  prior  conviction.43 

In  a  few  cases,  impeachment  of  witnesses  has  been  attempted  through 
the  use  of  guilty  verdicts  on  which  no  judgment  has  been  entered.44 
Some  courts  have  regarded  such  efforts  proper,  reasoning  that  a  guilty 
verdict  is  equivalent  to  a  conviction  and  that  such  verdicts  are  correct 
until  set  aside.45  Other  courts,  for  various  reasons,  have  refused  to  sanc- 
tion the  use  of  guilty  verdicts  for  impeachment  by  prior  conviction  ex- 
cept where  judgment  has  been  rendered.46  While  the  use  of  a  guilty 
verdict  without  judgment  has  been  rejected  on  the  basis  of  the  eviden- 
tiary rule  that  a  verdict  may  be  shown  only  by  the  record  of  judgment,47 
the  most  cogent  reasoning  for  allowing  impeachment  only  through  judg- 
ments may  be  found  in  People  v.  Marendi*8  In  the  Marendi  case,  the 
New  York  court  reasoned  that  verdicts  should  not  be  admitted  for  im- 
peachment by  prior  conviction  because  they  may  be  set  aside,  never 
resulting  in  judgment.49  In  other  words,  until  a  judgment  has  been 
rendered,  the  process  of  adjudication  in  the  trial  court  has  not  been 
completed.  The  process  of  adjudication  is  completed  only  when,  after 
careful  consideration  of  defense  motions,  the  trial  judge  finds  the  con- 
duct of  the  trial  proper  and  enters  judgment.    The  admission  of  bare 

wSee  generally  Miss.  Code  Ann.  §  2564  (1956)  ;  Bruno  v.  Cook,  224  So.  2d  567 
(Miss.  1969) . 

">E.g.,  Lacey  v.  People,  442  P.2d  402,  405-06  (Colo.  1968);  Annot.,  146  A.L.R. 
867    (1943). 

4iAnnot.,  146  A.L.R.  at  867-69. 

md.  at  869-70;  e.g.,  Wright  v.  State,  38  Ala.  App.  64,  79  So.  2d  66  (1954) . 

43Remington  v.  Judd,  186  Wis.  338,  202  N.W.  679  (1925) . 

"See  Annot.,  14  A.L.R.3d  1272   (1967) . 

45£.g.,  state  v.  Reyes,  99  Ariz.  257,  408  P.2d  400   (1965)  . 

46Annot.,  14  A.L.R.3d  at  1274-76. 

47Fairman  v.  State,  429  P.2d  63    (Nev.  1967) . 

48213  N.Y.  600,  107  N.E.  1058   (1915) . 

49/d.,  107  N.E.  at  1963. 


1973]  COMMENTS  515 

jury  verdicts  would  compromise  one  of  the  great  safeguards  of  justice  — 
the  trial  judge's  power  to  reject  improper  verdicts.  Therefore,  only 
judgments,  and  not  mere  verdicts,  should  be  admitted  for  impeachment 
by  prior  conviction. 

II.     Convictions  Subject  to  Inquiry 

Section  1693  provides  that  "any  crime"  may  be  used  as  a  basis  for 
cross-examination  and  contradiction  to  impeach  credibility.50  Crime  in 
this  context  has  been  judicially  defined  as  "any  violation  of  law  liable 
to  punishment  by  criminal  prosecution."51  Under  this  definition,  cross- 
examination  and  contradiction  is  proper  as  to  any  felony52  or  misde- 
meanor53 of  which  the  witness  has  previously  been  convicted.  Such  con- 
victions may  arise  in  the  mayor's  courts,  justice  of  the  peace  courts, 
county  courts,  or  circuit  courts.54  Since  judgments  of  conviction  from 
other  state  courts  and  federal  courts  equally  evince  guilt  and  thus  bad 
character,  convictions  in  these  courts  should  likewise  be  admissible  for 
impeachment  of  credibility.55 

The  all-inclusive  nature  of  the  word  "conviction"  in  the  Mississippi 
statute  has  led  the  legislature  to  create  an  exception  to  the  general  rule 
permitting  cross-examination  and  contradiction  with  respect  to  certain 
traffic  violations.  Convictions  for  the  violation  of  traffic  regulations 
which  are  punishable  as  misdemeanors  may  not  be  inquired  about  or 
shown  by  other  evidence  for  impeachment  purposes.56  The  basis  of  the 
exception  is  that  convictions  for  violation  of  traffic  regulations  have 
little,  if  any,  bearing  on  the  veracity  of  a  witness.57  Presently,  convictions 
for  even  the  most  serious  traffic  offenses,  such  as  driving  while  intoxi- 
cated,58 and  reckless  driving,59  are  punishable  as  misdemeanors  and  may 

50Miss.  Code  Ann.  §  1693  (1956) . 

si/d.  §  674;  Lewis  v.  State,  85  Miss.  35,  37  So.  497  (1904);  Helm  v.  State, 
67  Miss,  562,  7  So.  487   (1890) . 

52£.g.,  Simmons  v.  State,  241  Miss.  481,  130  So.  2d  860  (1961)  . 

ssBreland  v.  State,  221  Miss.  371,  73  So.  2d  267  (1954);  Williams  v.  State,  87 
Miss.  373,  39  So.  1006  (1906) ;  Lewis  v.  State,  85  Miss.  35,  37  So.  497  (1904) ;  Helm  v. 
State,  67  Miss.  562,  7  So.  487   (1890) . 

54T*.  McElroy,  Mississippi  Evidence  §  188,  at  519  (1955) . 

55McCormick  §  43,  at  86;  3A  Wigmore  §  980. 

56Miss.  Code  Ann.  §  8280  (1956)  provides:  "The  conviction  of  a  person  upon  a 
charge  of  violating  any  provision  of  this  Act  or  other  traffic  regulation  less  than 
a  felony  shall  not  affect  or  impair  the  credibility  of  such  person  as  a  witness  in  any 
civil  or  criminal  proceeding." 

57jones  v.  State,  268  So.  2d  348,  350  (Miss.  1972)  . 

ssMiss.  Code  Ann,  §  8175-06   (Supp.  1972) . 

59Miss.  Code  Ann.  §  8175   (1956) . 


516  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

not  be  shown.    The  effect  of  the  exception  is  to  preclude  any  inquiry 
into  traffic  offenses  for  purposes  of  impeachment. 

In  the  case  of  juvenile  court  proceedings,  the  Mississippi  legislature 
has  engrafted  a  second  exception  onto  the  general  rule  that  any  convic- 
tion of  crime  may  be  used  for  impeachment  of  credibility.60  The  purpose 
of  the  qualification  is  the  protection  of  juvenile  offenders  from  the  last- 
ing stigma  attached  to  delinquency.61  This  policy  conflicts  with  the  gen- 
eral function  of  courts  to  ascertain  the  truth  upon  which  the  system  of 
trials  is  based.62  The  need  to  protect  the  juvenile  from  the  effects  of  his 
previous  youthful  indiscretion  is  predominant  when  the  proceeding  con- 
cerns the  juvenile  and  the  prior  youth  court  adjudication  is  being  offered 
against  the  juvenile.  In  this  instance  cross-examination  concerning  prior 
youth  court  adjudications  is  forbidden.63  When,  on  the  other  hand,  the 
juvenile  is  not  concerned  in  the  proceeding  and  the  prior  adjudication 
is  not  being  used  against  him,  the  need  to  protect  the  former  juvenile 
offender  is  not  so  strong.  Accordingly,  in  such  cases,  the  policy  in  favor 
of  ascertainment  of  truth  is  stronger  than  the  policy  of  protection,  and 
cross-examination  with  respect  to  prior  juvenile  court  proceedings  is 
allowed.64 

While  this  analysis  effectuates  the  policies  involved,  a  major  prob- 
lem remains  to  be  resolved  in  Mississippi.  Section  1693  authorizes  cross- 
examination  and  contradiction  only  with  respect  to  convictions  for  im- 
peachment.65 At  least  in  the  case  of  defendant-witnesses,  the  statute 
must  be  strictly  construed.66  The  sections  involving  juvenile  court  pro- 
ceedings, on  the  other  hand,  specifically  provide  that  juvenile  court  ad- 
judications are  not  convictions.67  The  Mississippi  Supreme  Court  could 
not,  without  doing  violence  to  the  rule  that  section  1693  authorizes  ex- 
amination only  as  to  convictions,  so  construe  the  statute  as  to  include 
juvenile  court  proceedings.68  One  solution  to  the  problem  might  be  a  con- 

eoMiss.  Code  Ann.  §§  7185-09,  7187-09   (Supp.  1972)   provide  in  pertinent  part: 

...  No  adjudication  upon  the  status  of  any  child  shall  ...  be  deemed  a 

conviction.  The  disposition  of  a  child  or  any  evidence  given  in  the  court  in 

any  proceedings  concerning  him  shall  not  be  admissible  against  the  child  in 

any  case  or  proceeding  in  any  other  court.  .  .  . 

siHamburg  v.  State,  248  So.  2d  430   (Miss.  1971)  . 

$2See  id. 

63Stratham  v.  Blaine,  234  Miss.  649,  107  So.  2d  93   (1958) . 

©^Hamburg  v.  State,  248  So.  2d  430  (Miss.  1971) ;  3A  Wigmore  §  980.  Contra, 
McCormick  §  43,  at  86. 

esMiss.  Code  Ann.  §  1693   (1956) . 

66Murray  v.  State,  266  So.  2d  139  (Miss.  1972) ;  Johns  v.  State,  255  So.  2d  322 
(Miss.  1971) ;  Berry  v.  State,  212  Miss.  164,  54  So.  2d  222   (1951) . 

67Miss.  Code  Ann.  §§  7185-09,  7187-09   (Supp.  1972) . 

**E.g.,  Barlow  v.  State.  233  So.  2d  829   (Miss.  1970)  . 


1973]  COMMENTS  517 

struction  of  the  word  "conviction"  in  the  juvenile  court  statutes  on  a 
policy  basis  which  would  allow  the  use  of  juvenile  court  adjudications 
for  impeachment.  The  better  solution  would  be  an  amendment  to  sec- 
tion 1693  to  include  juvenile  court  adjudications. 

Under  some  circumstances,  the  pendency  of  an  appeal  from  the 
judgment  of  conviction  may  preclude  cross-examination  for  impeach- 
ment regarding  the  judgment  from  which  appeal  is  taken.  Most  courts 
allow  attacks  on  the  credibility  of  a  witness  by  showing  convictions  not- 
withstanding the  pendency  of  an  appeal  therefrom.69  The  rationale  of 
this  approach  is  that  a  conviction  is  final  until  reversed;  the  only  effect 
of  the  appeal  being  to  stay  execution  of  the  judgment  pending  appeal.70 
In  the  case  of  appeals  from  circuit  court,  a  similar  rule  grounded  on  the 
finality  of  judgments  prevails  in  Mississippi.71  A  reversal  of  the  convic- 
tion shown  for  impeachment,  subsequent  to  the  trial,  does  not  render 
the  cross-examination  as  to  the  conviction  improper,  for  the  conviction 
was  final  at  the  time  the  cross-examination  took  place.72  After  reversal 
of  the  conviction  appealed  from,  however,  the  previous  prosecution  is 
not  a  proper  subject  for  cross-examination  to  impeach  credibility,  and 
the  alleged  offense  may  not  form  the  basis  of  impeachment  unless  on 
remand  the  trial  court  again  enters  a  judgment  of  conviction  in  the 
case.73  Since  appeals  from  the  county  court  are  reviewed  in  the  circuit 
court  or  supreme  court  on  the  record,74  the  supreme  court  may  be 
expected  to  apply  the  finality  principle  to  such  appeals  in  a  similar 
manner  in  holding  the  use  of  such  convictions  permissible  pending 
appeal. 

In  the  case  of  appeals  from  justice  of  the  peace,  municipal,  and 
police  courts,  appellate  procedure  differs  in  that  the  appellant  is  given 
a  trial  de  novo,  and  no  review  on  the  record  takes  place.75  This  varia- 
tion in  procedure  has  been  viewed  by  the  supreme  court  as  indicative 
of  the  fact  that  such  appeals  are  not  from  final  judgments,  and  there- 
fore convictions  in  these  courts  may  not  be  used  for  impeachment  pend- 
ing appeal.76  Whether  the  alleged  offense  may  form  the  basis  of  im- 
peachment through  former  conviction  depends  on  the  outcome  of  the 
trial  de  novo.   If  a  conviction  results  in  the  county  or  circuit  court,  the 

eaAnnot.,  16  A.L.R.3d  726,  728    (1967)  . 

7o/d.  at  728-33. 

TiNicholson  v.  State,  254  So.  2d  881    (Miss.  1971)  . 

72Annot.,  16  A.L.R.3d  at  733-35. 

7  3/d.  at  728-33;  Nicholson  v.  State,  254  So.  2d  881    (Miss.  1971)    (dictum)  . 

74Miss.  Code  Ann.  §  1616    (Supp.  1972) . 

isid.  §  1202;  Miss.  Code  Ann.  §  1617   (1956) . 

TeHarris  v.  State,  209  Miss.  141,  46  So.  2d  91    (1950)  . 


518  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

finality  principle  indicates  that  appeals  from  conviction  in  the  trial 
de  novo  would  be  subject  to  the  same  rules  as  ordinary  cases  on  appeal 
from  these  courts.  Where  the  writ  of  procedendo  is  issued  due  to  lack  of 
prosecution  of  the  appeal,  the  finality  principle  would  indicate  that  the 
conviction  may  again  be  used  for  impeachment  because  the  writ  instructs 
the  judge  of  the  justice  of  the  peace,  municipal,  or  police  court  to  pro- 
ceed with  the  enforcement  of  his  judgment  of  conviction.77 

Another  circumstance  which  may  cast  doubt  on  the  permissibility  of 
cross-examination  and  contradiction  with  respect  to  a  former  offense  is 
the  existence  of  a  pardon.  Some  of  the  collateral  effects  of  a  former  con- 
viction are  terminated  by  the  existence  of  a  pardon.78  A  pardon  in  itself 
does  not,  however,  contain  any  implication  of  innocence,  nor  does  a 
pardon  modify  that  character  trait  which  led  the  witness  to  commit  the 
offense.79  Since  character  itself  is  relevant,  the  Mississippi  Supreme 
Court,  like  the  high  courts  of  many  other  states,  has  found  the 
existence  of  a  pardon  for  the  offense  to  be  no  impediment  to  the  use  of 
the  conviction  on  cross-examination  for  the  impeachment  of  credibility.80 

Lapse  of  time  is  another  contingency  which,  it  has  been  argued, 
should  render  a  conviction  inadmissible  for  impeachment  purposes.  Such 
an  argument  misconceives  the  purpose  behind  impeachment  by  prior 
conviction.  The  mere  passage  of  time  does  not  necessarily  indicate  that 
a  witness  has  reformed,  even  though  it  does  constitute  a  factor  in  favor 
of  the  witness.81  Most  courts  have  indicated  that  the  question  of  the 
admissibility  of  a  conviction  for  impeachment  of  credibility  is  in  the 
discretion  of  the  trial  judge,  who  may  forbid  the  use  of  the  conviction 
where  he  feels  that  the  conviction  is  not,  under  the  circumstances,  in- 
dicative of  the  present  character  of  the  witness.82  In  the  exercise  of  dis- 
cretion in  this  matter,  the  trial  judge  should  consider  not  only  the  lapse 
of  time  since  the  conviction,  but  also  the  length  of  imprisonment,  sub- 
sequent conduct,  age,  and  intervening  circumstances  of  the  witness.83 
A  few  courts  have  rejected  the  proposition  that  remoteness  is  a  question 

77An  explanation  of  the  use  of  the  writ  of  procedendo  may  be  found  in  Murphy 
v.  State,  223  Miss.  290,  78  So.  2d  342   (1955) . 

78Miss.  Code  Ann.  §  2563   (1956) . 

79Stratham  v.  Blaine,  234  Miss.  649,  107  So.  2d  93  (1958) ;  accord,  3A  Wigmore 
§  980,  at  833. 

sostratham  v.  Blaine,  234  Miss.  649,  107  So.  2d  93  (1958) ;  McCormick  §  43,  at  87; 
Annot.,  30  A.L.R.2d  893   (1953) . 

siSee  Shorter  v.  State,  257  So.  2d  236  (Miss.  1972) ;  Simmons  v.  State,  241  Miss. 
481,  130  So.  2d  860  (1961) . 

82McCormick  §  43,  at  87. 

sssibley  v.  Jeffreys,  76  Ariz.  340,  264  P.2d  831,  833-34    (1953) . 


1973]  COMMENTS  519 

of  admissibility  and  regard  remoteness  of  the  conviction  as  affecting  only 
the  weight  which  the  jury  will  accord  the  prior  conviction.84 

Prior  decisions  in  this  state  should  not  be  regarded  as  rejecting  the 
position  that  remoteness  is  a  consideration  of  admissibility  in  the  discre- 
tion of  the  trial  judge.85  Since  indications  of  reform  were  absent  in  these 
cases,  the  opinions  should  be  read  only  as  rejecting  the  contention  that 
bare  passage  of  time,  without  more,  is  sufficient  to  render  a  conviction 
inadmissible  as  too  remote.  If  a  showing  can  be  made  that  the  witness 
today  is  not  the  same  man,  characterwise,  as  the  one  who  was  convicted 
of  a  crime,  there  is  little,  if  any,  profit  in  showing  his  past  mistakes  to 
the  jury.  Such  errors  are  simply  not  indications  of  present  character, 
which  is  the  relevant  consideration.86 

III.     Scope  of  Inquiry 

Section  1693  authorizes  only  a  limited  cross-examination  and  con- 
tradiction designed  to  demonstrate  the  existence  of  a  conviction.87  The 
discrediting  fact  under  statutes  relating  to  impeachment  by  prior  con- 
viction is  the  conviction  itself,  not  the  evidentiary  facts  upon  which  the 
conviction  was  obtained.88  These  evidentiary  facts,  or  details,  add  little 
to  the  inquiry  so  far  as  impeachment  by  prior  conviction  is  concerned 
and  contain  a  capacity  for  confusion  of  the  issues  before  the  jury  and  in 
some  cases  contain  a  capacity  for  prejudice.89  In  phrasing  his  questions, 
the  cross-examiner  should  exercise  care  to  avoid  eliciting  details  of  the 
prior  offense  from  the  witness,  for  the  Mississippi  Supreme  Court  has 
reversed  on  this  basis  when  prejudice  appears.90  Since  interrogation 
of  a  defendant  on  the  stand  as  to  a  prior  conviction  has  capacity 
for  prejudice,  the  Mississippi  court  has  even  reversed  one  case  where 
it  appeared  that,  in  fact,  the  witness  had  not  been  convicted  of  the 
offense  inquired  about.91  Accordingly,  great  care  should  be  exercised 
to  insure  that  defendant-witnesses  have  actually  been  convicted  before 
any  cross-examination  takes  place. 

When  the  cross-examiner  desires  to  attempt  to  impeach  credibility 
by  showing  a  prior  conviction,  he  should  begin  by  asking  the  witness  if 

84£.g.,  State  v.  Robington,  137  Conn.  140,  75  A.2d  394   (1950)  . 
ssSee  Shorter  v.  State,  257  So.  2d  236    (Miss.  1972)  . 
seSee  McCormick  §  43,  at  87. 

87Lawson  v.  State,  161  Miss.  719,  138  So.  361    (1931) . 

sspowers  v.  State,  156  Miss.  316,  126  So.   12    (1930) ;  Walker  v.  State,  151   Miss. 
862,  119  So.  796   (1929);  see  Miss.  Code  Ann.  §  1693    (1956). 

89McCormick  §  43,  at  88;  see,  e.g.,  Powers  v.  State,  156  Miss.  316,  126  So.  12  (1930) . 
»o£.gv  Powers  v.  State,  156  Miss.  316,  126  So.  12    (1930)  . 
"Murphy  v.  State,  226  So.  2d  755   (Miss.  1969) . 


520  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

he  has  ever  been  convicted  of  any  crime  other  than  traffic  violations.92 
If  the  witness  is  a  party  to  the  proceeding,  the  initial  question  should 
also  exclude  any  juvenile  court  adjudications  against  the  witness.93  The 
phrasing  of  the  question  may  assume  tremendous  importance,  since  in- 
quiries as  to  how  many  times  the  witness  has  been  raided94  or  charged, 
for  example,  are  improper  since  they  do  not  elicit  testimony  concerning 
a  prior  conviction.  Initial  questions  which  fail  to  convey  adequately 
the  idea  that  convictions  are  the  subject  of  the  inquiry  should  be  avoided 
because  of  their  propensity  to  elicit  prejudicial  matter.95 

If  the  witness  acknowledges  the  existence  of  former  convictions, 
further  inquiry  is  permissible  to  show  the  identity  of  the  offenses96  and 
the  dates  of  conviction.97  Further  questioning  concerning  the  convictions 
is  impermissible.98  Hence,  no  questions  may  be  asked  concerning  the 
punishment  imposed,99  the  identity  of  the  victim,100  or  other  details.101 

Suppose  that  in  the  scope  of  a  proper  cross-examination,  the  answers 
disclose  details  which  were  not  inquired  of  the  witness.  Logically,  the 
cross-examiner  should  not  be  penalized  for  the  unresponsive  answers  to 
his  questions.  Therefore,  where  a  witness  supplies  details  not  called  for 
by  the  questions,  no  error  of  a  prejudicial  nature  exists.102 

Despite  the  prejudicial  character  which  details  may  assume,  the 
Mississippi  Supreme  Court  has  indicated  that  not  all  inquiries  which 
incorporate  detail  are  impermissible.  Where  a  witness  does  not  recall 
an  offense  of  which  he  has  been  convicted,  or  is  reluctant  to  disclose  the 

92The  exclusion  of  traffic  violations  is  based  on  the  prohibition  contained  in 
Miss.  Code  Ann.  §  8280   (1956) . 

93The  exclusion  of  juvenile  court  convictions  is  based  on  the  provisions  of 
Miss.  Code  Ann.  §§  7185-09,  7187-09   (Supp.  1972) . 

S4ivey  v.  State,  206  Miss.  734,  40  So.  2d  609    (1949) . 

95See  Cooksey  v.  State,  175  Miss.  82,  166  So.  388  (1936)  ;  Dodds  v.  State,  92  Miss. 
230,  45  So.  863   (1908) . 

QeBrooks  v.  State,  192  Miss.  121,  4  So.  2d  886  (1941) ;  Hartfield  v.  State,  186  Miss. 
75,  189  So.  530  (1939)  ;  Peacock  v.  State,  174  So.  582  (Miss.  1937)  ;  Lawson  v.  State, 
161  Miss.  719,  138  So.  361  (1931);  Bufkin  v.  Grisham,  157  Miss.  746,  128  So.  563 
(1930) ;  Powers  v.  State,  156  Miss.  316,  126  So.  12    (1930) . 

97Simmons  v.  State,  241  Miss.  481,  130  So.  2d.  860   (1961) . 

s&See  Emily  v.  State,  191  So.  2d  925  (Miss.  1966)  (dictum) ;  White  v.  State,  202 
Miss.  246,  30  So.  2d  393  (1947) ;  Powers  v.  State,  156  Miss.  316,  126  So.  12  (1930) . 

ssMurray  v.  State,  266  So.  2d  139  (Miss.  1972) ;  Powell  v.  State,  195  Miss.  161, 
13  So.  2d  622  (1943) ;  Hartfield  v.  State,  186  Miss.  75,  189  So.  530  (1939) ;  Roney 
v.  State,  167  Miss.  532,  142  So.  475   (1932) . 

loofierry  v.  State,  212  Miss.  164,  54  So.  2d  222  (1951) ;  Walker  v.  State,  151  Miss. 
862,  119  So.  796   (1929). 

ioi£.g.,  Lawson  v.  State,  161  Miss.  719,  138  So.  361    (1931)  . 

io2Smith  v.  State,  217  Miss.  123,  63  So.  2d  557  (1953) ;  Bufkin  v.  Grisham,  157 
Miss.  746,  128  So.  563   (1930). 


1973]  COMMENTS  521 

offense,  the  cross-examiner  may  lead  the  witness  by  incorporating  detail 
into  his  questions  in  order  to  refresh  the  memory  of  the  witness  or  to 
press  the  reluctant  witness  to  answer.103  Similarly,  where  the  witness 
seeks  to  clarify  a  question  by  asking  what  conviction  is  being  referred 
to,  the  cross-examiner  may  state  details  in  order  to  direct  the  attention 
of  the  witness  to  the  conviction  about  which  information  is  sought.104 
These  exceptions  allowing  the  use  of  detail  should  not  be  viewed  as  a 
license  to  incorporate  highly  prejudicial  matter  into  leading  questions. 
Prejudicial  detail  in  leading  questions  contains  no  less  of  a  capacity  to 
inflame  the  jury  than  the  same  prejudicial  matter  coming  from  the 
mouth  of  the  witness. 

In  cases  where  the  witness  sought  to  be  impeached  has  multiple 
convictions,  the  problem  may  become  even  more  acute.  Each  and  every 
prior  conviction  may  be  shown  in  order  to  persuade  the  jury  that  the 
witness  is  unworthy  of  belief.105  The  prior  convictions  which  may  be 
shown  include  all  those  occurring  up  to  the  time  the  witness  takes  the 
stand.106  If  a  witness  has  an  extensive  record,  even  a  cooperative  witness 
may  encounter  difficulty  in  recalling  the  identity  and  dates  of  all  prior 
convictions.  In  these  cases,  the  cross-examiner  likewise  has  a  right  to  in- 
corporate details  of  a  non-prejudicial  nature  into  leading  questions  in 
order  to  refresh  the  memory  of  the  witness  and  press  uncooperative  wit- 
nesses for  answers.107 

The  supreme  court's  resolution  of  the  conflicting  policies  involved 
in  the  question  of  whether  details  may  be  utilized  by  the  cross-examiner 
may  not  be  the  optimum  solution  to  the  problem.  Certainly,  all  details 
have  some  capacity  for  confusion  of  issues  and,  in  addition,  such  details 
may  be  prejudicial.  The  supreme  court,  in  allowing  detail  to  be  used 
to  refresh  memory,  has  accepted  the  risk  that  the  jury  will  be  confused, 
placing  primary  emphasis  on  the  prejudicial  nature  of  the  information 
contained  in  the  leading  questions.108  In  doing  so  the  supreme  court  has 
ignored  the  risk  that  the  jury,  unaware  that  the  details  are  not  the  im- 
peaching evidence,  will  consider  the  details  embodied  in  the  leading 
questions  on  the  subject  of  credibility.  Although  a  certain  degree  of 
time  and  trouble  is  saved  by  securing  the  witness's  admission  of  his 
former  conviction,  other  avenues  are  available  for  the  proof  of  the  for- 
mer conviction.    Where  the  witness  denies  that  he  has  been  convicted 

loasmith  v.  State,  217  Miss.  123,  63  So.  2d  557    (1953) . 
io4Emily  v.  State,  191  So.  2d  925    (Miss.  1966) . 
losBrown  v.  State,  96  Miss.  534,  51  So.  273   (1910) . 
loeMarlowe  v.  State,  27  So.  2d  769   (Miss.  1946) . 

io7Mangrum  v.  State,  232  So.  2d  703    (Miss.  1970);  Dorroh  v.  State,  229  Miss. 
315,  90  So.  2d  653    (1956) . 

lossee  Mangrum  v.  State,  232  So.  2d  703    (Miss.  1970) . 


522  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

of  one  or  more  former  offenses,  the  cross-examiner  may  simply  use  extrin- 
sic evidence  to  establish  the  conviction.109  In  the  absence  of  necessity, 
the  better  means  of  proceeding  is  to  avoid  injecting  detail  into  the  trial 
at  all,  by  prohibiting  leading  questions  which  contain  details. 

In  one  category  of  cases,  necessity  does  dictate  that  some  method  be 
devised  to  bring  before  the  jury  the  identity  of  the  offense.  Where  the 
witness  admits  numerous  convictions  but  is  unable  to  recall  all  of  his 
offenses,  other  evidence  of  the  conviction  is  inadmissible  to  show  the 
conviction  because  such  evidence  would  not  contradict  the  answers  of 
the  witness.110  In  this  area  an  attempt  to  jar  the  witness's  memory  would 
seem  justified,  provided  the  detail  used  in  the  questions  was  not  prejudi- 
cial. Any  other  procedure  would,  in  effect,  preclude  the  jury  from  know- 
ing anything  about  the  witness's  conviction. 

Assuming,  on  the  other  hand,  that  the  witness  denies  the  existence 
of  one  or  more  of  his  former  convictions,  what  course  of  action  is  open 
to  the  cross-examiner?  In  this  case,  the  witness's  response  may  be  con- 
tradicted by  the  introduction  of  other  evidence  of  the  conviction.111  This 
denial  by  the  witness  of  the  former  conviction  is  essential  to  the  admissi- 
bility of  evidence  of  the  conviction  from  other  sources.112 

What  form  of  evidence  is  admissible  to  contradict  an  assertion  by  a 
witness  that  he  has  not  been  convicted  of  any  crime,  other  than  any 
which  he  may  have  admitted?  The  Mississippi  Supreme  Court  has  con- 
sistently held  the  record  of  conviction  admissible  to  contradict  the  wit- 
ness, even  in  misdemeanor  cases.113  Such  a  position  is  in  accordance  with 
the  general  rule  requiring  proof  of  judicial  records  by  copy  in  preference 
to  recollection  testimony  because  of  the  ease  of  access  to  and  greater 
reliability  of  such  records.114  On  a  number  of  occasions,  the  supreme 
court  has  recognized  that  the  best  evidence  of  a  conviction  is  a  copy 
of  judicial  records.115 

io9Miss  Code  Ann.  §  1693   (1956) . 

noMathews  v.  State,  243  Miss.  568,  139  So.  2d  386   (1962) . 

niMiss.  Code  Ann.  §  1693   (1956) . 

ii2Berry  v.  State,  212  Miss.  164,  54  So.  2d  222  (1951)  (dictum) ;  Alabama  &  V.R.R. 
v.  Thornhill,  106  Miss.  367,  63  So.  674  (1913)  ;  Cook  v.  State,  85  Miss.  738,  38  So. 
110    (1905). 

ii3Hardin  v.  State,  232  Miss.  470,  99  So.  2d  600  (1958)  (misdemeanor)  ;  Breland 
v.  State,  221  Miss.  371,  377,  73  So.  2d  267,  268-69  (1954)  (dictum)  (misdemeanor); 
Berry  v.  State,  212  Miss.  164,  172,  54  So.  2d  222,  225  (1951)  (dictum) ;  Powers  v.  State, 
156  Miss.  316,  126  So.  12  (1930)  (dictum);  Helm  v.  State,  67  Miss.  562,  7  So. 
487    (1890). 

h4McCormick  §  241;  4  Wigmore  §§  1269-70. 

usSee  McGowan  v.  State,  269  So.  2d  645  (Miss.  1972)  ;  Brown  v.  State,  222  Miss. 
863,  77  So.  2d  694    (1955) ;  Outlaw  v.  State,  208  Miss.  13,  43  So.  2d  661    (1949)  . 


1973]  COMMENTS  523 

In  Rowe  v.  State,11*  the  Mississippi  Supreme  Court  cast  doubt  on 
the  proposition  that  proof  of  a  conviction  must  be  accomplished  through 
proof  of  the  record  of  conviction,  rather  than  through  recollection  testi- 
mony. On  cross-examination,  a  witness  admitted  to  prior  convictions  for 
gambling,  speeding,  and  drinking,  but  denied  that  he  had  been  convicted 
of  any  other  offenses.117  Over  objection  of  the  defendant's  counsel,  a  city 
clerk  was  called  who  testified  concerning  a  number  of  convictions  which 
the  witness  had  not  admitted  on  cross-examination.  Although  the  docket 
of  the  police  court  was  not  introduced,  the  supreme  court  found  no  error 
in  the  procedure.118  The  supreme  court  directed  no  discussion  to  the 
question  of  the  manner  in  which  the  witness  was  contradicted,  but  dis- 
posed of  the  objection  on  the  basis  that  the  examination  of  the  clerk 
did  not  disclose  detail.119  While  the  argument  could  be  made  that  the 
supreme  court  by  inference  held  that  recollection  testimony  is  a  per- 
missible mode  of  contradiction,  it  does  not  appear  reasonable  that  a 
decision  of  such  importance  would  be  made  without  any  discussion  at  all. 
Therefore,  it  may  be  safely  assumed  that,  in  the  absence  of  circumstances 
constituting  an  excuse,  the  conviction  must  be  shown  by  proof  of  the 
record  of  conviction,  rather  than  by  recollection  testimony. 

IV.     Conclusion 

Several  conclusions  of  a  general  nature  may  be  drawn  from  the  fore- 
going analysis  of  the  use  of  prior  convictions  for  impeachment  in 
Mississippi.  The  first  conclusion  is  simply  that  the  statute  authorizes 
cross-examination  only  as  to  convictions.  A  conviction  exists  under  the 
statute  only  upon  rendition  of  a  judgment.  Once  these  two  criteria  have 
been  met,  any  crime  other  than  traffic  violations  or  juvenile  court  adjudi- 
cations against  a  party  witness  may  be  shown  for  impeachment  of  credi- 
bility. The  crime  may  be  shown  by  the  testimony  of  the  witness  himself 
or,  where  the  witness  denies  the  existence  of  the  conviction,  by  a  copy 
of  the  judgment  of  conviction. 

Two  areas  merit  consideration  by  the  legislature  and  the  supreme 
court  with  a  view  to  modification  of  the  existing  law.  The  legislature 
should  seriously  consider  the  amendment  of  section  1693  to  include 
juvenile  court  adjudications.  Once  included,  the  question  of  whether 
such  adjudications  are  convictions  will  be  moot  when  offered  for  im- 
peachment purposes.  The  supreme  court  should  consider  further  limi- 

H6242  Miss.  499,  136  So.  2d  220   (1962)  . 
ii7/d.  at  505,  136  So.  2d  at  223. 
iis/d.  at  506-07,  136  So.  2d  at  223. 
"o/d.  at  507,  136  So.  2d  at  223. 


524  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

tation  of  existing  rules  relating  to  the  use  of  detail  in  leading  questions 
to  refresh  witnesses'  memories.  The  possible  abuse  of  the  right  of 
cross-examination  with  respect  to  prior  convictions  is  too  strong  to 
ensure  the  even-handed  administration  of  justice  in  these  cases.  The 
better  approach  would  be  to  minimize  prejudice  and  confusion  of 
issues  by  permitting  leading  questions  which  include  detail  only  where 
ncessary  to  show  the  conviction  at  all. 

David  S.  Raines 


1973]  COMMENTS  525 

CONSTITUTIONAL  LIMITATIONS  OF  PRISONERS'  RIGHT 
TO  MEDICAL  TREATMENT 

In  recent  years  the  courts,  particularly  the  federal  courts,  have  be- 
gun to  abandon  the  "hands-off"  doctrine1  when  faced  with  prisoners' 
allegations  of  mistreatment  by  prison  officials.2  One  area  of  prisoner 
complaint  which  has  been  affected  by  this  increased  judicial  scrutiny  is 
inmate  access  to  medical  treatment. 

Although  a  duty  to  provide  medical  treatment  to  those  confined  has 
long  been  recognized,3  it  has  often  been  very  difficult  to  enforce,  and 
remedies  for  its  breach  have  been  largely  illusory.4  The  only  remedy 
utilized  to  any  great  extent  prior  to  recent  years  is  the  damage  suit  in 
state  court  against  prison  officials  for  bodily  injury  arising  out  of  a 
breach  of  duty  to  provide  medical  care.5    An  inmate  desiring  to  bring 

iThe  "hands-off"  doctrine  is  a  judicially  self-imposed  restraint  against  hearing 
inmate  complaints  of  mistreatment.  The  justification  for  the  doctrine  most  frequently 
given  by  courts  is  the  separation  of  powers;  i.e.,  that  judicial  review  of  administrative 
decisions  would  hamper  prison  discipline  or  jeopardize  the  authority  of  prison 
officials.  E.g.,  Powell  v.  Hunter,  172  F.2d  330  (10th  Cir.  1949) ;  Golub  v.  Krimsky, 
185  F.  Supp.  783  (S.D.N.Y.  1960) .  Underlying  this  reluctance  to  interfere  is  the 
often  articulated  fear  that  it  would  be  unwise  for  judges  to  attempt  to  substitute  their 
judgment  on  internal  prison  matters  for  that  of  prison  officials  who  presumably  are 
trained  in  prison  management.  Comment^  Beyond  the  Ken  of  the  Courts:  A  Critique 
of  Judicial  Refusal  to  Review  the  Complaints  of  Convicts,  72  Yale  LJ.  506,  522 
(1963) .  For  additional  discussions  of  the  "hands-off"  doctrine  see  Goldfarb  &  Singer, 
Redressing  Prisoners'  Grievances,  39  Geo.  Wash.  L.  Rev.  175  (1970) ;  Turner,  Estab- 
lishing the  Rule  of  Law  in  Prisons:  A  Manual  for  Prisoners'  Rights  Litigation,  23 
Stan.  L.  Rev.  473  (1971) ;  Comment,  Judicial  Limitations  Upon  Discretionary 
Authority  in  the  Penal  Process,  8  Calif.  W.L.  Rev.  505  (1972) ;  Note,  Recent  Ap- 
plications of  the  Ban  on  Cruel  and  Unusual  Punishments:  Judicially  Enforced 
Reform  of  Nonfederal  Penal  Institutions,  23  Hast.  L.J.  1111    (1972). 

2E.g.,  Cruz  v.  Beto,  405  U.S.  319   (1972) ;  Johnson  v.  Avery,  393  U.S.  483    (1969) . 

sSome  states,  for  example,  have  statutes  which  impose  a  duty  of  care  on  jailers. 
See,  e.g.,  the  statutes  cited  in  Zalman,  Prisoners'  Rights  to  Medical  Care,  63  J.  Crim. 
L.C.  &  P.S.  185-87  nn. 11-13  (1972).  In  other  states,  there  is  a  common  law  duty  "to 
care  for  the  prisoner,  who  cannot,  by  reason  of  the  deprivation  of  his  liberty, 
care  for  himself."  Spicer  v.  Williamson,  191  N.C.  487,  132  S.E.  291,  293  (1926). 
For  a  discussion  of  cases  dealing  with  the  statutory  and  common  law  duty  of  the 
jailer  to  furnish  medical  care,  see  Sneidman,  Prisoners  and  Medical  Treatment:  Their 
Rights  and  Remedies,  4  Crim.  L.  Bull.  450,  451-56    (1968) . 

*See  generally  Comment,  Beyond  the  Ken  of  the  Courts,  supra  note  1,  at  507-08. 

sAnnot.,  14  A.L.R.2d  353,  367-70    (1950) ;  see  Sneidman,  supra  note  3,  at  451-56. 

Federal  prisoners  may  sue  for  negligent  treatment  under  the  Federal  Tort 
Claims  Act,  28  U.S.C.  §§  1346(b),  2671-80  (1970).  Muniz  v.  United  States,  374 
U.S.  150  (1963) .  From  1963-1968,  Justice  Department  statistics  indicate  that  142 
suits  were  filed  by  prisoners  under  the  Act,  19  of  which  were  settled  with  awards 


526  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

such  a  suit,  however,  must  often  face  rather  formidable  procedural  and 
legal  obstacles.  In  some  states,  for  example,  the  doctrine  of  civil  death 
prevents  prison  inmates  from  bringing  civil  suits.6  Even  where  suit  is 
permitted,  an  inmate  may  run  into  additional  difficulties.  He  may  be 
denied  the  right  to  appear  in  court  to  represent  himself;  witnesses,  who 
are  often  inmates  themselves,  may  be  difficult  to  obtain  because  of  ad- 
ministrative pressure  brought  to  prevent  testimony  against  the  prison  or 
because  they  have  been  released  or  transferred  to  other  institutions.7 
Furthermore,  because  of  their  convictions,  their  testimony  may  not  carry 
as  much  weight  with  the  jury  as  that  of  prison  administrators.8  Lastly, 
even  if  these  obstacles  were  to  be  overcome,  such  suits  are  simply  not 
economically  feasible  except  in  cases  where  serious  injury  or  death  results. 

With  the  demise  of  the  "hands-off"  doctrine  in  prisoners'  rights 
litigation,  however,  the  federal  courts  have  begun  to  fashion  new  reme- 
dies under  habeas  corpus9  and  civil  rights  legislation,10  which  may 
eventually  prove  to  be  more  helpful  to  inmates  than  the  traditional  tort 
suit.   The  purpose  of  this  comment  will  be  to  discuss  emerging  constitu- 

ranging  from  $750  to  $110,000.  Eighty-five  were  dismissed,  and,  as  of  August  15, 
1968,  38  were  still  pending.  F.  Cohen,  The  Legal  Challenge  to  Corrections: 
Implications  for  Manpower  and  Training  74  n.52    (1969)  . 

*At  common  law,  prisoners  were  said  to  lack  capacity  to  sue.  For  discussion  of  the 
problems  facing  an  inmate  desiring  to  bring  a  civil  suit,  see   The  Collateral  Conse- 
quences of  a   Criminal  Conviction,  23  Vand.  L.  Rev.  929,   1018-30    (1970)  . 
"Comment,  Beyond  the  Ken  of  the  Courts,  supra  note  1,  at  553. 
sSneidman,  supra  note  3,  at  459. 

928  U.S.C.  §§  2241-55  (1970)  .  Originally  habeas  corpus  was  only  used  to 
challenge  the  legality  of  the  detention.  McNally  v.  Hill,  293  U.S.  131,  139  (1934) , 
overruled,  Peyton  v.  Rowe,  391  U.S.  54  (1968)  .  In  1944,  however,  the  Sixth  Circuit,  in 
Coffin  v.  Reichard,  143  F.2d  443  (6th  Cir.  1944)  ,  permitted  the  use  of  the  writ 
to  challenge  conditions  of  imprisonment.  Since  that  time  more  and  more  courts 
have  followed  the  Coffin  rationale,  and  the  Supreme  Court  in  1969,  in  Johnson  v. 
Avery,  393  U.S.  483  (1969)  ,  approved  such  use  of  the  writ.  Not  all  courts,  however, 
have  adopted  this  broad  use  of  habeas  corpus.  See  generally  Development  in  the 
Law-Federal  Habeas  Corpus,  83  Harv.  L.  Rev.  1038,  1079-87  (1970) . 
io42  U.S.C.  §1983   (1970)   provides: 

Every  person  who,  under  color  of  any  statute,  ordinance,  regulation,  custom, 

or    usage,    of   any   State    or   Territory,    subjects,    or    causes    to    be    subjected, 

any  citizen  of  the  United  States  or  other  person  within  the  jurisdiction  thereof 

to    the  deprivation   of  any  rights,  privileges,  or   immunities  secured   by   the 

Constitution  and  laws,  shall  be  liable  to  the  party  injured  in  an  action  at  law, 

suit  in  equity  or  other  proper  proceeding  for  redress. 

Section    1983   is  limited   to   actions  under  color  of  state   law  and   cannot,   therefore, 

be  used  by  federal  prisoners.  28  U.S.C.  §  1331   (1970)  grants  federal  jurisdiction  over 

cases  involved  the  Constitution  or  federal  statutes,  but  requires  a  $10,000  jurisdictional 

amount.  For  additional  discussion  see  Goldfarb  &  Singer,  supra  note   1,  at  264-65. 


1973]  COMMENTS  527 

tional  standards  of  review  utilized  by  the  federal  courts  in  reviewing 
prisoners'  allegations  of  denial  of  medical  treatment.11 

In  order  to  state  a  claim  arising  under  habeas  corpus  or  section  1983, 
an  inmate  must  allege  facts  sufficient  to  show  a  denial  of  medical 
care  which  amounts  to  a  violation  of  a  right  secured  by  the  Federal 
Constitution  or  laws.12  The  majority  of  complaints  allege  a  viola- 
tion of  the  eighth  amendment  right  to  be  free  of  "cruel  and  un- 
usual" punishments,13  although  a  few  inmates  have  urged  that  such 
deprivation  violates  rights  secured  under  the  14th  amendment.14 

The  problem  thus  far  in  dealing  with  individual  inmate  complaints 
regarding  medical  care  has  been  the  reluctance  of  the  courts  to  interfere 
with  the  decisions  of  prison  administrators  and  doctors  with  regard  to 
treatment.  Originally  this  reluctance  was  formulated  in  terms  of  the 
"hands-off"  doctrine  —  courts  would  not  interfere  in  the  internal  opera- 
tion and  administration  of  the  prison.15   Although  it  is  now  well  settled 

nExhaustion  of  state  remedies  is  not  necessary  under  section  1983.  Wilwording 
v.  Swenson,  404  U.S.  249  (1971) ;  Houghton  v.  Shafer,  392  U.S.  639  (1968)  .  Further- 
more, compensation  for  damages  may  be  secured  under  section  1983.  E.g.,  Sostre  v. 
McGinnis,  442  F.2d  178,  204-05  (2d  Cir.  1971)  ,  cert,  denied  sub.  nom.  Sostre  v.  Oswald, 
405  U.S.  978  (1972)  .  Thus  the  majority  of  cases  challenging  medical  treatment  are 
brought  under  this  section,  rather  than  habeas  corpus.  Most  of  these  have  been 
challenges  by  individual  inmates  rather  than  class  actions  attacking  practices  on 
an  institution-wide  scale.  E.g.,  Campbell  v.  Beto,  460  F.2d  765  (5th  Cir.  1972) ; 
Riley  v.  Rhay,  407  F.2d  496  (9th  Cir.  1969);  Mayfield  v.  Craven,  299  F.  Supp.  1111 
(E.D.  Cal.  1969) ;  Talley  v.  Stephens,  247  F.  Supp.  683  (E.D.  -Ark.  1965) ,  aff'd,  433 
F.2d  873    (9th  Cir.   1970). 

i2£.gv  Ramsey  v.  Ciccone,  310  F.  Supp.  600,  604  (W.D.  Mo.  1970) . 
^E.g.,  United  States  v.  Fitzgerald,  466  F.2d  377  (D.C.  Cir.  1972)  ;  Startz  v. 
Cullen,  468  F.2d  560  (2d  Cir.  1972) ;  Black  v.  Ciccone,  324  F.  Supp  129  (W.D.  Mo. 
1970) ;  Faught  v.  Ciccone,  283  F.  Supp.  76  (W.D.  Mo.  1966) .  See  generally  Singer, 
Bringing  the  Constitution  to  Prison:  Substantive  Due  Process  and  the  Eighth  Amend- 
ment, 39  U.  Cin.  L.  Rev.  650  (1970) . 

i*E.g.,  Startz  v.  Cullen,  468  F.2d  560  (2d  Cir.  1972) ;  Riley  v.  Rhay,  407  F.2d  496 
(9th   Cir.    1969). 

^See  note  1  supra.  In  United  States  ex  rel.  Lawrence  v.  Ragen,  323  F.2d  410, 
412  (7th  Cir.  1963) ,  the  Seventh  Circuit,  rejecting  an  inmate  complaint  against 
officials  for  inadequate  medical  care,  held: 

State   prison    officials   must   of   necessity   be   vested   with   a    wide   degree   of 

discretion  in  determining  the  nature  and  character  of  medical  treatment  to 

be  afforded  state  prisoners.  It  is  not  the  function  of  federal  courts  to  interfere 

with  the  conduct  of  state  officials  in  carrying  out  such  duties  under  state  law. 

Again,  in  Haskew  v.  Wainwright,  429  F.2d  525,  526    (5th  Cir.  1970) ,  allegations  that 

the    petitioner   was    denied    emergency    treatment    and    remedial    surgery    were    held 

not  to  state  a  claim  upon  which  relief  could  be  granted  because: 

Federal  courts  will  not  inquire  into  adequacy  or  sufficiency  of  medical  care 
of  state  prison  inmates  unless  there  appears  to  have  been  an  abuse  of  the 
broad  discretion  which  prison  officials  possess  in  this  area. 


528  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

that  deprivations  of  constitutional  rights  fall  within  an  exception  to  the 
"hands-off"  doctrine,16  the  courts  have  continued  to  encounter  difficulty 
in  formulating  a  test  for  deprivation  of  medical  treatment  which  rises  to 
the  level  of  a  constitutional  violation.  One  of  the  most  frequently 
applied  tests  is  that  the  deprivation  must  be  "shocking"  to  the  conscience 
of  society  in  order  to  deprive  the  petitioner  of  rights  secured  by  the 
eighth  or  14th  amendments.17  In  applying  this  standard,  many  courts 
began  to  make  a  distinction  between  a  total  denial  of  medical  treatment 
and  medical  treatment  which  is  merely  inadequate  or  improper.18 

Not  until  recently  have  courts  begun  to  speak  in  terms  of  a  prisoner's 
right  to  reasonable  or  adequate  medical  care.19  Most  of  the  latest  cases 
recognize  that  where  prison  officials  deny  medical  treatment  which  has 
been  ordered  by  a  physician,  there  has  been  a  denial  of  the  prisoner's 
right  to  adequate  or  reasonable  medical  attention.20    Courts  are  still 

i^See  note  1  supra. 

nE.g.,  Startz  v.  Cullen,  468  F.2d  560,  561  (2d  Cir.  1972) ;  United  States  ex  rel. 
Hyde  v.  McGinnis,  429  F.2d  864,  866  (2d  Cir.  1970) .  For  discussion  of  traditional 
tests  used  by  courts  in  applying  the  eighth  amendment  see  Singer,  supra  note  13. 

is£.gv  Coppinger  v.  Townsend,  398  F.2d  392,  394  (10th  Cir.  1968)  ("A  claim  of 
total  denial  of  medical  care  differs  from  a  claim  of  inadequacy  of  medical  care.") ; 
Argentine  v.  McGinnis,  311  F.  Supp.  134,  137-38  (S.D.N.Y.  1969)  (complaint  dismissed 
where  petitioner  claimed  only  inadequate  treatment) ;  Austin,  v.  Harris,  226  F.  Supp. 
304,  308-09  (W.D.  Mo.  1964)  (hearing  granted  on  basis  of  allegations  that  inmate 
had  "bone  arthritis"  and  was  kept  13  months  without  "treatment  of  any  kind")  . 

™E.g.,  Campbell  v.  Beto,  460  F.2d  765,  768  (5th  Cir.  1972)  ("deprivation  of 
basic  elements  of  adequate  medical  treatment"  is  unconstitutional) ;  Blanks  v.  Cun- 
ningham, 409  F.2d  220,  221  (4th  Cir.  1969)  (prisoner  entitled  to  "reasonable"  medical 
care) ;  accord,  Edwards  v.  Duncan,  355  F.2d  993  (4th  Cir.  1966) ;  Gates  v.  Collier,  349 
F.  Supp.  881,  894  (N.D.  Miss.  1972)  (inmates  entitled  to  "adequate  provision  for  their 
physical  health  and  well-being");  Newman  v.  Alabama,  349  F.  Supp.  278,  281  (M.D.  Ala. 
1972)  (prisoners  entitled  to  "basic  elements  of  adequate  medical  treatment")  ;  Collins  v. 
Schoonfield,  344  F.  Supp.  257,  277  (D.  Md.  1972)  (jailer  must  "provide  reasonable  med- 
ical assistance  to  inmates  including  a  reasonable  medical  examination,  access  to  sick 
call;  treatment  for  special  medical  problems;  proper  dental  attention;  adequate  suicide 
prevention  techniques");  Jones  v.  Wittenberg,  330  F.  Supp.  707,  718  (N.D.  Ohio  1971) , 
affd  sub.  nom.  Jones  v.  Metzger,  456  F.2d  854  (6th  Cir.  1972)  (ordered  "adequate" 
medical  care  furnished) ;  Sawyer  v.  Sigler,  320  F.  Supp.  690  (D.  Neb.  1970) ,  affd 
per  curiam,  445  F.2d  818  (8th  Cir.  1971)  (state  must  furnish  adequate  treatment) ; 
Ramsey  v.  Ciccone,  310  F.  Supp.  600,  604  (W.D.  Mo.  1970)  (improper  or  inadequate 
treatment  which  violates  the  eighth  amendment  "must  be  continuing,  must  not  be 
supported  by  any  competent,  recognized  school  of  medical  practice  and  must  amount 
to  a  denial  of  needed  medical  treatment") ;  Talley  v.  Stephens,  247  F.  Supp.  683, 
687  (E.D.  Ark.  1965),  affd,  433  F.2d  873  (9th  Cir.  1970)  (inmates  "entitled  to  demand 
reasonable  medical  attention  for  injuries  and  disabilities  at  all  reasonable  times, 
and  to  attendance  at  sick  calls  at  reasonable  times") . 

20jj.g.,  Campbell  v.  Beto,  460  F.2d  765  (5th  Cir.  1972)  (dismissal  was  incorrect 
where  complaint  alleged  that  inmate,  a  heart  patient,  was  forced  to  do  heavy  work, 


1973]  COMMENTS  529 

reluctant  to  interfere,  however,  where  "a  difference  of  opinion  exists 
between  the  lay  wishes  of  the  patient  and  the  professional  diagnosis  of 
the  doctor,"21  or  in  instances  of  mere  negligent  malpractice.22  In  other 
words,  the  prison  physician  is  increasingly  becoming  the  supreme  arbiter 
of  when  and  in  what  form  medical  treatment  should  be  given  and  of 
whether  treatment,  if  given,  was  in  fact  adequate. 

This  reliance  on  the  prison  doctor  as  the  only  person  with  sufficient 
competence  to  determine  when  adequate  care  is  being  given  seems  to  be 
but  another  variation  of  the  "hands-off"  doctrine  which  defers  to  prison 
officials  administrative  matters  in  which  the  courts  lack  expertise.  As 
such,  it  is  fraught  with  the  same  possibilities  of  abuse  which  led  the 
courts  increasingly  to  reject  that  doctrine  in  other  areas  of  prisoners' 
rights  litigation.  One  commentator  succinctly  described  these  abuses  in 
writing  of  the  need  for  a  rejection  of  the  doctrine  in  other  areas,  noting 
a  need  for 

recognition  by  the  courts  of  the  ego  involvement  of  prison  offi- 
cials in  covering  up  abuses,  coupled  with  an  awareness  of  the 
community  of  interest  among  prison  employees  and  the  relation- 
ship of  personal  advancement  to  continual  vindication  in  all 
conflicts  with  inmates.  .  .  ,23 

denied  medicine  prescribed  by  his  physician  and  placed  on  a  restricted  diet  without 
medicine  in  contravention  of  doctor's  order) ;  Tolbert  v.  Eyman,  434  F.2d  625  (9th 
Cir.  1970)  (claim  allowed  against  warden  who  refused  to  allow  prisoner  to  receive 
medication  authorized  by  prison  doctor  and  sent  to  inmate  from  druggist  outside  of 
prison) ;  Black  v.  Ciccone,  324  F.  Supp.  129  (W.D.  Mo.  1970)  (where  chief  of  surgery 
certified  that  petitioner  was  unfit  to  work  in  barbershop,  it  was  eighth  amendment 
violation  to  keep  him  there) ;  Sawyer  v.  Sigler,  320  F.  Supp.  690,  693  (D.  Neb.  1970) , 
aff'd,  445  F.2d  818  (8th  Cir.  1971)  (courts  should;  be  guided  by  physician's  statement 
that  medical  treatment  was  inadequate) . 

2i£.g.,  Cates  v.  Ciccone,  422  F.2d  926  (8th  Cir.  1970)  (courts  should  rely  on  re- 
ports of  reputable  prison  physicians) ;  Coppinger  v.  Townsend,  398  F.2d  392,  394 
(10th  Cir.  1968) ;  Lee  v.  Stynchcombe,  347  F.  Supp.  1076,  1080-81  (N.D.  Ga.  1972) 
(court  relies  on  doctor's  affadavit) ;  Tyerina  v.  Ciccone,  324  F.  Supp.  1265  (W.D. 
Mo.  1971)  (based  on  court-appointed  consultant  and  prison  doctor's  uncontradicted 
affadavit,  no  denial)  ;  Prewitt  v.  Arizona  ex  rel.  Eyman,  315  F.  Supp.  793  (D.  Ariz. 
1969)  (no  denial  based  on  doctor's  affadavit) ;  Mayfield  v.  Craven,  299  F.  Supp. 
1111  (E.D.  Cal.  1969)  (court  should  not  second-guess  physician  as  to  propriety  of 
treatment) ;  Willis  v.  White,  310  F.  Supp.  205  (E.D.  La.  1970) ;  Ayers  v.  Ciccone,  300  F. 
Supp.  568   (W.D.  Mo.  1968) ,  cert,  denied,  396  U.S.  943    (1968) . 

22E.g.,  Ramsey  v.  Ciccone,  310  F.  Supp.  600,  605    (W.D.  Mo.  1970) . 
23Comment,   Beyond    the   Ken    of    the    Courts,   supra   note    1,   at   529.   See   also 
Zalman,  supra  note  3,  at  198: 

There  is  a  real  danger  that  the  relatively  sheltered  position  of  a  prison 
doctor  will  attract  those  seeking  primarily  a  civil  service  sinecure,  but  there 
is  a  greater  danger  that  the  long  exercise  of  power  over  the  powerless  will 
destroy  those  attributes  of  physicans  which  are  necessary  for  quality  medical 


530  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Thus  far  there  has  been  little  recognition  by  the  courts  that  prison 
doctors  are  officials  of  the  prison  and  as  such  are  subject  to  the  same 
pressures  and  needs  for  personal  justification  as  are  other  administra- 
tors —  particularly  where  an  inmate  may  be  suing  the  doctor  for  damages 
for  inadequate  treatment.24 

A  study  of  California's  prison  medical  facilities,25  for  example, 
found  "that  far  too  many  valid  cases  of  illness  or  injury  are  not  be- 
lieved or  are  misdiagnosed;"26  proper  diets  were  often  unavailable  or 
denied  by  doctors  to  patients  suffering  from  chronic  illness  or  disease;27 
emergency  procedures  were  sometimes  poor;28  and  staff  members,  includ- 
ing some  doctors,  were  "calloused  and  frequently  hostile"  towards  in- 
mates registering  complaints.29  In  fact,  complaints  against  one  doctor 
in  the  system  ranged  from  overriding  other  doctors'  orders  and  failure 
to  adequately  diagnose  or  treat  patients  who  were  disciplinary  problems, 
to  attempting  "to  impress  his  own  religious  beliefs  on  inmates  by  telling 
them  that  faith  would  heal  their  medical  ailments."30  The  committee 
conducting  the  study  felt  strongly  enough  about  the  charges  against  the 
doctor  to  recommend  his  removal  "[i]f,  but  a  fraction  of  the  innumerable 
allegations  made  against  [him]  are  true.  .  .  ."31 

It  is  difficult  to  know  exactly  how  widespread  such  conditions  are 
in  our  nation's  prisons  because  of  the  sparsity  of  any  information  on 
medical  practice  within  penal  institutions.  Although  the  American 
Medical  Association  in  cooperation  with  the  American  Bar  Association's 
Committee  on  Correctional  Facilities  and  Services  is  currently  studying 
prison  medical  facilities  in  an  attempt  to  develop  guidelines  and  improve 
services,32  the  last  national  survey  of  prison  medicine  took  place  in 
1929.33    Recent  cases34  and  studies35  of  individual  prison  systems  indi- 

2-iSee  cases  cited  note  21  supra. 

25ASSEMBLY  SELECT  COMMITTEE  OF  PRISON  REFORM  AND  REHABILITATION,  AN  EX- 
AMINATION of  California's  Prison   Hospitals    (1972) . 

26id.  at  16. 

27id.  at  24,  29,  40,  45,  53,  64. 

28/d.  at  17. 

29/d.  at  60-62. 

sold,  at  61 

sild.  at  62. 

3211  Crim  L.  Rep.  2102    (1972). 

33F.  Rector,  Health  and  Medical  Service  in  American  Prisons  and  Reforma- 
tories (1929),  cited  in  Zalman,  supra  note  3,  at  198. 

34£.g.,  Gates  v.  Collier,  349  F.  Supp.  881  (N.D.  Miss.  1972) ;  Newman  v.  Alabama, 
349  F.  Supp.  278  (M.D.  Ala.  1972) ;  Collins  v.  Schoonfield,  344  F.  Supp.  257,  267-70 
(D.  Md.  1972) ;  Wayne  County  Jail  Inmates  v.  Wayne  County  Bd.  of  Comm'rs,  Civil 
No.  173-217    (Cir.  Ct.,  Wayne  County,  Mich.,  May  18,  1971) . 

ssReports  cited  at  notes  1  and  2  of  California's  Prison  Hospitals,  supra  note  25. 


1973]  COMMENTS  531 

cate,  however,  that  conditions  similar  to  the  ones  existing  in  California's 
prisons  may  be  prevalent  in  many  penal  institutions  and  that  medical 
facilities  and  personnel  are  not  equipped  to  handle  the  medical  prob- 
lems of  a  substantial  portion  of  the  inmate  population.  At  any  rate, 
allegations  of  mistreatment  such  as  those  detailed  above  are  frequent  in 
inmate  complaints.36 

Although  it  may  be  true  that  many  inmates  are  malingerers  and 
that  their  complaints  are  clearly  frivolous,37  placing  complete  reliance 
on  the  prison  doctor's  testimony  that  efficient  treatment  has  been  ren- 
dered can  work  to  deny  other  inmates  their  constitutional  right  to  ade- 
quate treatment  and  cause  them  severe  harm  or  discomfort.  In  only  two 
cases  thus  far  has  a  federal  court,  in  dealing  with  an  individual's 
complaint,  appointed  a  physician  to  make  an  independent  assessment  of 
the  adequacy  of  treatment.38  Because  of  the  time  and  expense  involved 
in  such  a  method,  it  seems  unlikely  that  many  courts  will  adopt  such  a 
practice,  particularly  in  cases  where  the  risk  of  serious  injury  is  not 
apparent.  Nevertheless,  where  substantial  harm  or  discomfort  might 
result  to  the  inmate  if  the  doctor's  treatment  is  incorrect,  the  best  way 
to  insure  that  the  inmate  is  not  being  deprived  of  his  right  to  medical 
treatment  is  to  resort  to  an  independent  assessment  of  the  prison 
physician's  diagnosis.  Another  way  would  be  to  allow  inmates  to  consult 
with  their  own  doctors  when  they  feel  they  have  been  mistreated.39 

36£.g.,  Haskew  v.  Wainwright,  429  F.2d  525  (5th  Cir.  1970)  (alleges  inadequate 
emergency  treatment)  ;  Weaver  v.  Beto,  429  F.2d.  505  (5th  Cir.  1970)  (alleges  prejudice 
by  doctor) ;  United  States  ex  rel.  Lawrence  v.  Ragen,  323  F.2d  410  (7th  Cir. 
1963)  (claims  harrassed  at  hospital)  ;  Rhinehart  v.  Rhay,  314.  F.  Supp.  81  (W.D. 
Wash.  1970)  (complains  given  sedatives  against  will)  ;  Mayfield  v.  Craven,,  299  F. 
Supp.  1111  (E.D.  Cal.  1969)  (alleges  inadequate  emergency  treatment);  Medlock  v. 
Burke,  285  F.  Supp.  67  (E.D.  Wis.  1968)  (claims  race  prejudice  in  administering 
treatment) ;  Hurley  v.  Field,  282  F.  Supp.  34  (CD.  Cal.  1968)  (claims  removed  from 
ulcer  diet  as  punishment)  . 

37ln  reviewing  inmate  complaints,  judges  frequently  voice  this  fear.  E.g.,  Gates 
v.  Collier,  349  F.  Supp.  881,  901  (N.D.  Miss.  1972)  ;  Collins  v.  Schoonfield,  344  F. 
Supp.  257,  277    (D.  Md.  1972) . 

38in  Tijerina  v.  Ciccone,  324  F.  Supp.  1265  (W.D.  Mo.  1971)  the  court  appointed 
a  physician  to  examine  petitioner,  and  in  Ramsey  v.  Ciccone,  310  F.  Supp.  600  (W.D. 
Mo.  1970)  the  court  required  an  opinion  on  the  course  of  treatment  from  a  regular 
outside  consultant  to  the  prison. 

39Prison  regulations  normally  prohibit  inmates  from  hiring  private  physicians. 
Comment,  Prisoner's  Rights,  33  Ohio  St.  L.J.  1,  26  (1972)  .  The  Model  Penal  Code, 
however,  has  an  optional  provision  permitting  inmates  to  hire  their  own  doctors. 
ABA  &  Council  of  State  Gov'ts,  Compendium  of  Model  Correctional  Legisla- 
tion and  Standards  IV-27-8  (1972)  .  Case  law  on  the  right  of  an  inmate  to  consult 
with  his  own  physician  is  virtually  nonexistent;  however,  in  one  case,  Goodchild  v. 
Schmidt,  279  F.  Supp.  149    (E.D.  Wis.  1968) ,  the  inmate  alleged  inadequate  medical 


532  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

In  some  respects,  suits  brought  by  pre-trial  detainees  would  seem  to 
have  more  potential  for  sparking  reform  in  this  area  than  prisoners' 
suits.  Because  of  the  presumption  of  innocence  which  these  detainees 
enjoy,40  the  only  legitimate  purpose  of  incarceration  is  to  ensure  that 
the  detainee  will  appear  for  trial.41  Therefore,  the  only  sanctions  which 
can  be  validly  imposed  against  the  pre-trial  detainee  are  those  which 
"are  absolutely  requisite  for  the  purpose  of  confinement."42  For  this 
reason,  courts,  in  suits  against  jails,  have  been  more  disposed  to  find 
constitutional  infirmities  in  jail  conditions  and  restrictions  imposed  on 
pre-trial  detainees.43 

No  cases  were  found  that  dealt  with  the  right  of  a  pre-trial  detainee 
to  consult  his  own  physician.  However,  for  those  who  would  be  able 
to  pay  or  those  who  could  convince  an  outside  doctor  to  take  their 
cases  on  a  charity  basis,  allowing  private  consultations  might  to  some 
degree  eliminate  the  possibility  of  mistreatment  or  misdiagnosis.  In  view 
of  the  constitutional  limitations  placed  on  the  jailer  when  dealing  with 
pre-trial  detainees,  it  would  seem  that  denial  of  such  access  would  be 
very  difficult  to  justify  as  being  "absolutely  requisite  for  confinement."44 
Furthermore,  it  is  at  least  arguable  that  virtually  any  denial  to  the 
detainee  of  medical  treatment  available  to  people  out  on  bail  would 
violate  the  equal  protection  clause.45   However,  because  individual  suits 

treatment  and  that  he  was  being  prevented  by  prison  officials  from  mailing  a  letter 
to  the  Veterans  Administration  asking  for  their  help.  The  court  found  that  these 
allegations  were  insufficient  to  state  a  claim.  In  Tolbert  v.  Eyman,  434  F.2d  625  (9th 
Cir.  1970)  the  court  required  the  prison  to  allow  petitioner  to  receive  medicine 
from  an  outside  druggist  which  had  been  prescribed  by  a  physician  prior  to  the 
inmate's  incarceration. 

40£.gv  Collins  v.  Schoonfield,  344  F.  Supp.  257  (D.  Md.  1972) ;  Tyler  v.  Ciccone, 
299  F.  Supp.  684    (W.D.  Mo.  1969). 

4iImprisonment  before  trial  "is  only  for  safe  custody,  and  not  for  punishment " 

Jones  v.  Wittenberg,  323  F.  Supp.  93,  100  (N.D.  Ohio  1971) ,  supplemented  at  330  F. 
Supp.  707  (N.D.  Ohio  1971),  affd  sub  nom.  Jones  v.  Metzger,  456  F.2d  854  (6th 
Cir.   1971). 

42323  F.  Supp.  at  100. 

43£.g.,  Collins  v.  Schoonfield,  344  F.  Supp.  257  (D.  Md.  1972);  Hamilton  v. 
Love,  328  F.  Supp.  1182  (E.D.  Ark.  1971);  Seale  v.  Manson,  326  F.  Supp.  1375  (D. 
Conn.  1971) ;  Jones  v.  Wittenberg,  323  F.  Supp.  93  (N.D.  Ohio  1971)  ,  supplemented 
at  330  F.  Supp.  690  (N.D.  Ohio  1971) ,  affd  sub  nom.  Jones  v.  Metzger,  456  F.2d 
854   (6th  Cir.  1971);  Bryant  v.  Hendrick,  444  Pa.  83,  280  A.2d  110    (1971). 

44For  additional  discussion  on  independent  medical  assessment,  see  South  Caro- 
lina Dep't  of  Corrections,  The  EmerginIg  Rights  of  the  Confined  152-53    (1972) . 
isSee  Collins  v.  Schoonfield,  344  F.  Supp.  257,  265    (D.  Md.  1972) .  The  pre-trial 
detainee 

can  only  be  deprived  of  the  constitutional  rights  a  defendant  on  bail  await- 
ing trial  enjoys  to  the  extent  such  denial  is  required  to  insure  that  he  appears 


1973]  COMMENTS  533 

brought  by  pre-trial  detainees  are  likely  to  become  moot  before  hearing,46 
it  may  be  that  this  remedy  will  not  be  a  practical  one  for  the  large 
majority  of  inmates  who  have  been  arbitrarily  treated. 

Although  they  will  not  ultimately  resolve  the  question  of  whether 
an  individual  is  receiving  adequate  treatment  when  a  difference  of 
opinion  exists  between  him  and  the  prison  physician,  class  actions  chal- 
lenging an  entire  system's  medical  facilities  may  help  to  alleviate  con- 
ditions such  as  overcrowding,  lack  of  sufficient  staff  or  equipment  to 
function  effectively,  and  problems  in  sanitation.47  This  might  in  turn 
promote  a  generally  higher  level  of  care  for  inmates  and  respect  between 
doctor  and  patient.48 

One  case  in  particular,  Jones  v.  Wittenberg,^  illustrates  the  relief 
which  could  be  secured  in  regard  to  jail  medical  facilities.  In  Jones  the 
court  found  that  health  facilities  at  the  Lucas  County  Jail  in  Ohio  were 
"primitive";50  that  inmate  medical  care  was  provided  by  one  full-time 
nurse  and  a  part-time  doctor;  and  that  dental  care  consisted  only  of 
extractions.  In  addition,  there  was  no  infirmary  and  little  equipment.51 
The  court  ordered  specific  relief  in  terms  of  services  and  facilities,  in- 
cluding daily  sick  calls  by  a  physician,  medical  examinations  before  cell 
assignment,  examination  rooms,  treatment  rooms,  and  facilities  for  cura- 
tive and  preventive  dental  care.52 

at  trial  and  to  restrain  him  from  endangering  or  disrupting  the  security  of 

the  institution  in  which  he  is  detained,  or  to  deter  him,  if  his  conduct  has, 

already  caused  such  danger  or  disruption,  from  repeating  such  conduct. 

One  court  has  recently  spoken  forcefully  in  applying  the  equal  protection 
clause  to  those  convicted  of  crimes.  The  court  reasoned  that  where  a  statute  or  regu- 
lation distinguishes  between  those  convicted  of  a  crime  and  those  not  convicted 
and  where  the  interest  infringed  is  a  "fundamental"  one,  the  burden  is  on  the 
government  to  show  a  compelling  interest  before  the  statute  or  regulation  will  be 
justified.  Morales  v.  Schmidt,  340  F.  Supp.  544   (W.D.  Wis.  1972) . 

46jones  v.  Wittenberg,  323  F.  Supp.  93,  99    (N.D.  Ohio  1971)  . 

47Gates  v.  Collier,  349  F.  Supp.  881  (N.D.  Miss.  1972) ;  Newman  v.  Alabama,  349 
F.  Supp.  278  (M.D.  Ala.  1972)  ;  Jones  v.  Wittenburg,  323  F.  Supp.  93  (N.D. 
Ohio  1971) ;  Wayne  County  Jail  Inmates  v.  Wayne  County  Bd.  of  Comm'rs,  Civil  No. 
173-217    (Cir.  Ct.,  Wayne  County,  Mich.,  May  18,  1971). 

48Respect  might  also  be  promoted  by  creation  of  an  independent  ombudsman 
to  deal  with  prisoner's  complaints.  See  California's  Prison  Hospitals,  supra 
note  25,  at  9. 

49323  F.  Supp.  93  (N.D.  Ohio  1971) ,  supplemented  at  330  F.  Supp.  707  (N.D. 
Ohio  1971) ,  affd  sub  nom.  Jones  v.  Metzger,  456  F.2d  854   (6th  Cir.  1971) . 

50323  F.  Supp.  at  97. 

52330  F.  Supp.  at  718. 


534  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Two  recent  cases  indicate  that  similar  relief  may  be  forthcoming  to 
prisoners.  In  Newman  v.  Alabama,53  state  prison  inmates  brought  an 
action  seeking  declaratory  and  injunctive  relief,  contending  that  as  a 
class  they  were  deprived  of  the  right  to  adequate  medical  treatment  in 
violation  of  their  rights  guaranteed  under  the  eighth  and  14th  amend- 
ments. The  court  agreed  and  found  that  the  medical  facilities  were 
"grossly  understaffed";54  the  physical  plant  and  equipment  were  inade- 
quate; the  treatment  program  was  poorly  administered;  inmates  were 
intentionally  denied  treatment  in  many  instances  by  correctional  staff 
members;55  doctor's  orders  were  rarely  carried  out;  and  doctors  were 
frequently  unable  to  give  timely  and  thorough  care.56 

To  rectify  these  conditions,  the  court  ordered,  among  other  things, 
compliance  with  the  regulations  of  the  Federal  Bureau  of  Narcotics  and 
Dangerous  Drugs  to  limit  access  to  drugs,  and  inspections  by  the  Fire 
Marshall  and  State  Board  of  Health.  The  court  also  directed  defendants 
to  draw  up  a  plan  for  updating  equipment  and  increasing  staff  of  the 
medical  facilities.  Prison  officials  were  directed  to  insure  that  inmates 
were  promptly  diagnosed  and  treated  by  qualified  medical  personnel 
and  that  they  received  medication  and  treatment  prescribed  by  physi- 
cians. In  addition,  the  court  prohibited  officials  from  punishing  inmates 
for  seeking  medical  treatment.57 

In  Gates  v.  Collier,58  a  suit  attacking  a  wide  range  of  practices  at 
the  Mississippi  State  Penitentiary  (Parchman) ,  the  federal  district  court 
ordered  even  more  specific  relief  on  the  issue  of  medical  facilities  than 
the  court  in  Newman.  After  reviewing  conditions  at  Parchman,  the 
court  concluded  that  medical  facilities  at  Parchman  were  "inadequate,"59 
and  that  Parchman's  approximately  1,900  inmates  often  failed  to  receive 
"prompt  or  efficient  medical  examination,  treatment  or  medication."60 
The  court  further  found  that  administrative  attitudes  "tend  to  dis- 
courage inmates  from  seeking  needed  medical  assistance."61 

53349  F.  Supp.  278    (M.D.  Ala.  1972)  . 
54/d.  at  281. 

55/d. 

seid.  at  284. 

57 id.  at  287. 

58349  F.  Supp.  881    (N.D.  Miss.  1972) . 

59/d.  at  888. 

eo/d.    (emphasis  added) . 

6i/d.  For  example,  sergeants  punish  inmates  if  examination  fails  to  reveal 
obvious  illness,  and  the  Superintendent's  policy  is  to  threaten  such  inmates  with 
loss  of  selling  plasma,  of  good  time,  or  of  visiting  privileges. 


1973]  COMMENTS  535 

To  rectify  these  deficiencies  and  abuses,  the  court  ordered  that 
"minimum"  health  care  requirements  be  met.62  The  prison,  to  meet 
that  end,  was  ordered  to  employ  at  least  three  full-time  physicians,63 
two  full-time  dentists,  two  full-time  trained  physician  assistants,  six  full- 
time  nurses  certified  as  RN  or  LPN,  one  medical  records  librarian,  and 
two  medical  clerical  personnel.  Inmates  are  not  to  be  used  to  replace 
the  staff  though  they  can  be  used  to  supplement  it.  In  addition,  the 
court  instructed  the  prison  to  provide  the  services  of  a  qualified  radiolo- 
gist and  pharmacist  on  a  "regular  basis."64  To  meet  constitutional  re- 
quirements, medical  services  must  comply  with  those  general  standards 
proposed  by  the  American  Correctional  Association.65  Defendants  were 
enjoined  from  punishing  an  inmate  seeking  care  without  an  express 
determination  that  he  was  a  malingerer.66 

Long-range  plans  for  securing  adequate  medical  treatment  required 
by  the  court  include  consideration  of  the  feasibility  of  constructing  a 
complete  medical  center  including  a  hospital,  housing  inmates  within 
other  state  institutions  or  construction  of  special  wards  closely  associated 
with  these  institutions,  and  contracting  with  private  hospitals  to  provide 
specialized  treatment.67 

In  the  absence  of  legislative  action  in  this  area,68  class  action  suits 
such  as  the  ones  described  offer  great  potential  for  the  improvement  of 
prison  medical  facilities.69  Improved  facilities  can,  in  turn,  lead  to 
broader  services  for  inmates  with  medical  problems.  Dental  care,  for 
example,  need  not  be  confined  to  extractions,70  but  might  include  cor- 
rective and  preventive  treatment.  It  has  long  been  known  that  functional 
and   cosmetic   disfigurements  may   retard   an   offender's   rehabilitation 

62/d.  at  889. 
63Until  shortly  before  the  suit  Parchman  had  only  one  doctor.  At  the  time  of  the 
suit   the   prison   had   hired   an    additional   physician.    Unqualified    inmate   staff   had 
been  providing  the  bulk  of  treatment.  Id.  at  886. 

64/d.  at  901. 

66/d. 

67/d.  at  904. 

68Prison  administrators  typically  cite  lack  of  money  as  an  excuse  for  unconstitu- 
tional conditions.  See,  e.g.,  Hamilton  v.  Love,  328  F.  Supp.  1182,  1194  (E.D.  Ark. 
1971)  ("Inadequate  resources  can  never  be  an  adequate  justification  for  the  state's 
depriving  any  person  of  his  constitutional  rights.") 

69Even  where  medical  conditions  themselves  do  not  rise  to  the  level  of  a 
constitutional  deprivation,  they  may  work  to  contribute  to  the  overall  unconstitution- 
ality of  a  prison  system.  E.g.,  Holt  v.  Sarver,  300  F.  Supp.  825  (E.D.  Ark.  1969)  , 
aff'd,  442  F.2d  304   (8th  Cir.  1971)  . 

70jones  v.  Wittenberg,  323  F.  Supp.  93.  97    (N.D.  Ohio  1971)  . 


536  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

efforts.71  With  expanded  facilities  and  the  cooperation  of  surrounding 
community  medical  centers  and  doctors,  programs  for  corrective  surgery 
could  be  instituted.  Then  too,  with  larger  and  better  equipped  prison 
facilities,  inmates  could  be  offered  excellent  job  training  opportunities 
in  medicine.72  At  the  present  time,  however,  inmate  medical  needs  are 
at  a  much  more  fundamental  level. 

Clearly  there  is  a  great  need  today  for  improvement  in  the  quality 
of  health  care  offered  in  our  nation's  prisons.  In  the  past  few  years,  riots 
have  broken  out  in  many  penal  institutions  in  this  country.73  Almost  in- 
variably, lack  of  adequate  medical  treatment  appeared  as  an  inmate 
grievance.74 

The  trend  of  recent  decisions  in  the  federal  courts  on  medical  care 
has  been  toward  the  position  that  prisoners  have  a  constitutional  right 
to  adequate  medical  treatment.75  In  order  to  effectuate  that  right, 
several  courts  have  ordered  specific  relief  in  terms  of  facilities.76  In  the 
absence  of  grievance  procedures  within  the  prison  itself,  the  duty  of  in- 
suring that  this  equipment  and  personnel  will  effectively  serve  inmate 
needs  will  fall  primarily  on  the  federal  courts.  As  long  as  they  continue 
to  cling  to  the  last  vestiges  of  the  "hands-off"  doctrine  and  defer  the 
determination  of  adequacy  of  treatment  to  the  judgment  of  the  prison 
physician,  the  possibility  exists  that  some  doctors  will  abuse  that  discre- 
tion, and  prisoners  will  be  without  a  remedy  to  enforce  their  right  to 
care.  Whenever  serious  discomfort  or  injury  could  be  sustained  by  an 
inmate  if  the  doctor's  diagnosis  is  incorrect,  the  courts  should  not  be 
reluctant  to  call  for  an  independent  evaluation.77  To  do  anything  less 
would  be  to  prove  that  the  prisoner  is  indeed  "a  slave  of  the  state."78 

Julie  Ann  Epps 

7iKurtzberg,  Safar,  &  Mandell,  Plastic  Surgery  in  Corrections,  33  Fed.  Prob.  44 
(Sept.  1969)  . 

72California's  Prison  Hospitals,  supra  note  25,  at  9. 

tsSee,  e.g.,  Goldfarb  &  Singer,  supra  note  1,  at  176. 

7*E.g.,  inmates  at  Attica  asked  for  drug  treatment,  "adequate  medical  treatment 
for  every  inmate,  Spanish  speaking  doctors  or  interpreters  and  access  within  the 
institution  to  outside  doctors  and  dentists  at  the  inmate's  own  expense."  Besharov  & 
Mueller,  The  Demands  of  the  Inmates  of  Attica  State  Prison  and  the  United  Nations 
Standard  Minimum  Rules  for  Treatment  of  Prisoners:  A  Comparison,  21  Buff.  L. 
Rev.  839,  849    (1972) . 

1 5 See  cases  cited  note  19  supra. 

i^See  cases  cited  note  47  supra. 

T!Cf.  Weems  v.  U.S.,  217  U.S.  349,  378  (1910) ,  in  which  the  Court  states  that  the 
cruel  and  unusual  "clause  of  the  constitution  ...  is  not  fastened  to  the  absolute 
but  may  acquire  meaning  as  public  opinion  becomes  enlightened  by  human  justice." 

78RUffin  v.  Commonwealth,  62  Va.    (21  Gratt.)    790,  796    (1871) . 


RECENT   DECISIONS 

Constitutional  Law  —  Administrative  Hearing  —  Dismissed  Teaching 
Assistant  Must  Show  Actual  Bias  to  Support  Alleged  Denial  of 
Due  Process 

Respondent,  Mrs.  Elizabeth  Duke,  filed  a  complaint  against  North 
Texas  State  University  (NTSU) 1  alleging  that  the  university  violated 
her  constitutional  rights  of  free  speech  and  due  process  of  law  in  termi- 
nating her  employment  as  a  teaching  assistant2  because  of  her  profane 
criticism  of  the  administration  and  Board  of  Regents  of  NTSU.3  The 
acting  president  of  NTSU,  John  Carter,  investigated  the  actions  of  Mrs. 
Duke  and  reported  them  to  the  Board  of  Regents,  who  advised  him  to 
dismiss  Mrs.  Duke  if  the  charges  proved  true.  After  a  further  investiga- 
tion, Carter  notified  Mrs.  Duke  of  her  termination  by  a  letter  stating  the 
reasons  for  the  termination  and  advising  her  of  her  opportunity  for  an 
administrative  hearing  before  the  President's  cabinet.4  At  the  hearing, 
the  cabinet  found  that  Mrs.  Duke's  dismissal  was  justified.  Mrs.  Duke 
appealed  to  the  Board  of  Regents,  who  sustained  the  cabinet's  decision.5 
Mrs.  Duke  then  brought  an  action  in  federal  district  court,  alleging 
abridgement  of  her  right  of  free  speech  and  a  denial  of  due  process 
because  her  hearing  had  not  been  before  an  impartial  tribunal.  The 

iThe  complaint  was  filed  pursuant  to  42  U.S.C.  §§  1981  and  1983  (1970) ,  which 
allows  a  person  denied  equal  protection  or  deprived  of  any  constitutional  right  to 
bring  an  action  in  federal  court  to  secure  redress. 

sShe  had  been  employed  for  2  previous  years  and  had  accepted  the  University's 
offer  to  teach  a  third  year. 

3Mrs.  Duke  described  her  comments  as  "caustically  critical"  and  of  the  same 
tenor  as  an  article  she  later  wrote  for  Denton's  New  World  Press,  Feb.  17-Mar.  2, 
1971.  That  article  described  the  Regents  as  "members  of  the  ruling  class  .  .  .  respon- 
sible for  the  exploitation  of  poor  and  colored  peoples  all  over  the  world."  It  accused 
the  Regents  of  institutionalizing  racism,  sexism,  militarism,  and  imperialism,  and  of 

being  "criminals"  whose  "crimes  are  far  more  serious  than  motherf. g."  Duke  v. 

North  Texas  State  Univ.,  469  F.2d  829,  836    (5th  Cir.  1972)  . 

4The  cabinet  included  President  Carter  and  three  vice-presidents.  According  to 
President  Carter,  this  was  the  first  time  in  his  16  years  at  NTSU  that  this  procedure 
had  been  used.  According  to  the  local  chapter  of  American  Association  of  University 
Professors  (AAUP) ,  the  University  Tenure  Committee  (made  up  of  faculty  representa- 
tives) should  have  heard  the  case.  According  to  the  "Statement  on  Academic  Freedom. . . 
[etc.]"  which  had  previously  been  adopted  by  the  Board  of  Regents,  the  Tenure 
Committee  was  to  hear  cases  where  "a  non-tenured  member  .  .  .  alleges  a  prima 
facie  case  of  violation  of  academic  freedom  in  the  non-renewal  of  his  contract." 

sAlthough  a  6-month  period  elapsed  between  the  Cabinet  hearing  and  the 
Board  hearing,  it  appears  that  the  Board  did  not  see  the  record  of  the  first  hearing 
until  the  day  of  its  hearing.  The  Board  members  did  see  the  article  described 
in  note  3  supra. 

537 


538  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

district  judge  ordered  NTSU  to  reinstate  Mrs.  Duke.6  On  appeal  to  the 
Fifth  Circuit  Court  of  Appeals,  held,  reversed.  A  school  administrative 
body  cannot  be  disqualified  per  se  from  reviewing  the  dismissal  of  a 
teacher  whose  criticism  had  been  aimed  at  that  body  "solely  because" 
some  of  its  members  had  participated  in  investigating  the  charges  and 
in  making  the  initial  dismissal  decision.  Where  actual  prejudice  is  not 
shown  and  all  procedural  requirements  have  been  met,  the  findings 
and  conclusions  of  such  a  body  will  not  be  disturbed  if  supported  by 
substantial  evidence.  Duke  v.  North  Texas  State  University,  469  F.2d 
829   (5th  Cir.  1972) . 

There  have  been  numerous  attempts  by  the  courts  to  define  the 
term  "due  process  of  law."7  According  to  some  definitions,  a  fair  trial 
or  fair  hearing  is  essential  to  procedural  due  process.8  Generally,  the 
courts  have  required  that  this  hearing  be  conducted  by  an  impartial 
tribunal,9  and  that  there  must  not  only  be  impartiality  in  fact,  but  also 
an  "appearance  of  impartiality"  so  that  the  litigant  knows  he  has  re- 
ceived justice.10  The  question  of  partiality  has  arisen  in  cases  heard  by 
a  judge  with  a  personal  interest  in  the  outcome  of  the  trial;11  by  a  jury 

6The  district  judge  found  that  all  procedural  requirements  had  been  met  except 
the  "apparent  impartiality"  required  by  Ferguson  v.  Thomas,  430  F.2d  852,  856  (5th 
Cir.  1970) .  He  also  found  that  Mrs.  Duke's  dismissal  seriously  violated  her  right 
of  free  speech  and  that  there  was  no  infringement  of  university  interests. 

iSee,  e.g.,  Ownbey  v.  Morgan,  256  U.S.  94,  110-11  (1921);  Hagar  v.  Reclamation 
Dist.,  Ill  U.S.  701,  708  (1884);  Hurtado  v.  California,  110  U.S.  516  (1884);  Davidson 
v.  New  Orleans,  96  U.S.  97  (1877) ;  Munn  v.  Illinois,  94  U.S.  113,  123-24  (1876) ;  Mur- 
ray's Lessee  v.  Hoboken  Land  and  Imp.  Co.,  59  U.S.  (18  How.)  272,  276  (1856) ; 
Musselwhite  v.  State,  215  Miss.  363,  370-71,  60  So.  2d  807,  810-11  (1952) ;  Brooks  v. 
State,  209  Miss.  150,  154-55,  46  So.  2d  94,  97  (1950)  .  See  also  Frankfurter,  Memoran- 
dum on  "Incorporation"  of  the  Bill  of  Rights  into  the  Due  Process  Clause  of  the 
Fourteenth  Amendment,  78  Harv.  L.  Rev.  746,  750  (1965). 

Hn  re  Murchison,  349  U.S.  133,  136  (1955)  ;  Adamson  v.  California,  332  U.S.  46, 
53  (1947) ;  Palko  v.  Connecticut,  302  U.S.  319,  327  (1937) ;  Iowa  Cent.  R.R.  v.  Iowa, 
160  U.S.  389,  393  (1896);  Davidson  v.  New  Orleans,  96  U.S.  97,  105  (1877);  Mussel- 
white  v.  State,  215  Miss.  363,  370-71,  60  So.  2d  807,  810-11  (1952) ;  Brooks  v.  State, 
209  Miss.  150,  154-55,  46  So.  2d  94,  97    (1950) . 

o/n  re  Murchison,  349  U.S.  133,  136  (1955)  ;  Tumey  v.  Ohio,  273  U.S.  510,  532 
(1927) ;  Moore  v.  Dempsey,  261  U.S.  86  (1923) ;  Wasson  v.  Trowbridge,  382  F.2d  807, 
813  (2d  Cir.  19t>7)  ("a  fair  hearing  presupposes  an  impartial  trier  of  fact  .  .  .  .")  ; 
Floyd  v.  State,  166  Miss.  15,  39,  148  So.  226,  232    (1933). 

io/n  re  Murchison,  349  U.S.  133,  136  (1955);  Offutt  v.  United  States,  348  U.S. 
11,  14  (1954) ;  Berger  v.  United  States,  255  U.S.  22,  35-36  (1921);  Ferguson  v.  Thom- 
as, 430  F.2d  852,  856  (5th  Cir.  1970) ;  Pillsbury  Co.  v.  FTC,  354  F.2d  952,  964  (5th 
Cir.  1966) ;  Amos  Treat  &  Co.  v.  SEC,  306  F.2d  260,  267  (D.  C.  Cir.  1962) ;  Whitaker  v. 
McLean,  118  F.2d  596   (D.C.  Cir.  1941). 

nTumey  v.  Ohio,  273  U.S.  510,  523  (1927).  ("[I]t  certainly  violates  the  four- 
teenth amendment  .  .  .  [when]  the  judge  .  .  .  has  a  direct,  personal,  substantial 
pecuniary  interest  in  reaching  a  conclusion  against  [defendant]  in  his  case.") .  Com- 
pare Yazoo  R:  M.V.R.R.  v.  Kirk,  102  Miss.  41,  58  So.  710   (1912) ,  with  Norwich  Union 


1973]  RECENT  DECISIONS  539 

affected  by  pre-trial  publicity12  or  selected  by  a  process  which  systemati- 
cally excluded  some  classes;13  by  an  administrative  agency  with  combined 
investigatory,  prosecutory,  and  adjudicatory  functions;14  and  by  a 
judge  who  has  been  personally  victimized  by  the  defendant's  offensive 
act.15  The  ability  of  verbally  blistered  officials  to  hear  and  decide  im- 
partially the  case  of  a  hypercritical  teacher  has  also  been  questioned.16 
The  teacher  dismissal  cases  usually  involve  free  speech  and  procedural 
due  process  considerations.17  The  courts  have  held  that  the  14th  amend- 
ment "incorporates"  fundamental  substantive  rights,  including  freedom 

Fire  Ins.  Co.  v.  Standard  Drug  Co.,  121  Miss.  510,  93  So.  676  (1920)  .  See  also  John- 
son v.  Mississippi,  403  U.S.  212,  215  (1971) ;  Nadelmann,  Disqualification  of  Consti- 
tutional Court  ludges  for  Alleged  Bias?,  52  Judicature  27   (1968) . 

i2Sheppard  v.  Maxwell,  384  U.S.  333  (1966) ;  Rideau  v.  Louisiana,  373  U.S.  723 
(1963) ;  Irvin  v.  Dowd,  366  U.S.  717  (1961) ;  Moore  v.  Dempsey,  261  U.S.  86  (1923) . 
See  also  Estes  v.  Texas,  381  U.S.  532  (1965)  (television  cameras  in  courtroom) ;  Will, 
Free  Press  and  Fair  Trial,  40  Miss.  L.J.  495   (1969) . 

isHarper  v.  State,  251  Miss.  699,  171  So.  2d  129  (1965);  Farrow  v.  State,  91 
Miss,  509,  45  So.  619   (1908) .  But  see  State  v.  Hall,  187  So.  2d  861    (Miss.  1966) . 

i4Wong  Yang  Sung  v.  McGrath,  339  U.S.  33  (1950) ;  American  Cyanamid  Co.  v. 
FTC,  363  F.2d  757  (6th  Cir.  1966);  Amos  Treat  &  Co.  v.  SEC,  306  F.2d  260,  267  (D.C. 
Cir.  1962)  ;  T.S.C.  Motor  Freight  Lines,  Inc.  v.  United  States,  186  F.  Supp.  777,  790 
(S.D.  Tex.  1960) ,  aff'd  sub  nom.  Herrin  Transp.  Co.  v.  United  States,  366  U.S.  419 
(1961) .  But  see  FTC  v.  Cement  Institute,  333  U.S.  683,  702-03  (1948)  (asserting  doc- 
trine of  necessity  where  no  one  other  than  the  investigative  agency  is  authorized  to 
act)  . 

is"No  one  so  cruelly  slandered  is  likely  to  maintain  that  calm  detachment  neces- 
sary for  fair  adjudication."  Mayberry  v.  Pennsylvania,  400  U.S.  455,  465  (1971)  (hold- 
ing that  a  reviled  judge  must,  if  he  waits  until  the  trial's  end  defer,  to  another  judge 
to  set  punishment  for  contempt)  ;  accord,  Offutt  v.  United  States,  348  U.S.  11  (1954)  ; 
Cooke  v.  United  States,  267  U.S.  517  (1925)  ;  United  States  v.  Seale,  461  F.2d  345  (7th 
Cir.  1972) ;  cf.  Garrison  v.  Louisiana,  379  U.S.  64  (1964)  where  district  attorney  had 
charged  local  judges  with  inefficiency  and  laziness  and  was  convicted  by  one  of 
them  of  criminal  defamation.  See  also  Johnson  v.  Mississippi,  403  U.S.  212  (1971) ; 
Illinois  v.  Allen,  397  U.S.  337  (1970) ;  Frank,  Disqualification  of  Judges,  56  Yale 
L.J.  605  (1947) ;  Note,  Summary  Punishment  for  contempt:  A  Suggestion  That  Due 
Process  Requires  Notice  and  Hearing  Before  an  Independent  Tribunal,  39  So.  Cal. 
L.  Rev.  463  (1966) . 

lePickering  v.  Board  of  Educ,  391  U.S.  563,  578-79  n.2  (1968)  (reversing  the  dis- 
missal of  teacher  who  had  made  public  comments  critical  of  school  board's  handling 
of  revenue,  and  noting  defects  in  hearing  by  same  persons  who  were  victims  of  the 
criticism  and  had  brought  the  charges) ;  But  see  Ferguson  v.  Thomas,  430  F.2d  852, 
856  (5th  Cir.  1970)  (upholding  dismissal  of  professor  who  used  classroom  time  to 
discuss  matters  wholly  unrelated  to  subject,  even  though  board  members  who  heard 
his  case  were  also  targets  of  his  criticism)  .  See  also  1971  Wis.  L.  Rev.  354. 

vSee,  e.g.,  Perry  v.  Sindermann,  408  U.S.  593  (1972) ;  Pickering  v.  Board  of  Educ, 
391  U.S.  563  (1968)  ;  Keyishian  v.  Board  of  Regents,  385  U.S.  589  (1967)  ;  Moore  v. 
Winfield  City  Bd.  of  Educ,  452  F.2d  726  (5th  Cir.  1971) ;  Ferguson  v.  Thomas,  430 
F.2d  852   (5th  Cir.  1970) ;  Pred  v.  Board  of  Pub.  Instr.,  415  F.2d  851    (5th  Cir.  1969) . 


540  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

of  speech,  and  immunizes  them  from  state  attack.18  Yet  some  types  of 
speech  are  not  protected.19  Where  no  substantive  14th  amendment  rights 
are  at  issue,  courts  have  generally  held  that  tenured  teachers  are  entitled 
to  a  hearing  before  termination,  but  nontenured  teachers  are  not.20  In 
cases  of  governmental  attempts  to  condition  privileges  (e.g.,  public  em- 
ployment) on  the  nonexercise  of  constitutional  rights,  the  distinction 
between  "rights"  and  "privileges"  has  been  rejected.21  Thus,  even  though 

isWest  Virginia  State  Bd.  of  Educ.  v.  Barnette,  319  U.S.  624  (1943) ;  Lovell  v. 
City  of  Griffin,  303  U.S.  444,  450  (1938)  ;  Dejonge  v.  Oregon,  299  U.S.  353,  364  (1937)  ; 
Whitney  v.  California,  274  U.S.  357,  373  (1927)  (Brandeis,  J.,  concurring) ;  Gitlow  v. 
New  York,  268  U.S.  652,  666  (1925)  ;  see  id.  at  672  (Holmes,  J.,  dissenting) ;  Canning 
v.  State,  226  So.  2d  747  (Miss.  1969)  (holding  that  the  first  eight  amendments  have 
been  "absorbed"  into  the  due  process  clause  of  the  14th) .  See  generally  Frankfurter, 
supra,  note  7;  Richter,  One  Hundred  Years  of  Controversy:  The  Fourteenth  Amend- 
ment and  the  Bill  of  Rights,  15  Loyola  L.  Rev.  281    (1968-69)  . 

19(1)  Fighting  words  -  Chaplinsky  v.  New  Hampshire,  315  U.S.  568,  571-72  (1942)  . 
But  see  Terminiello  v.  Chicago,  337  U.S.  1    (1949) . 

(2)  Obscenity  -  Roth  v.  United  States,  354  U.S.  476  (1957)  .  But  see  Memoirs  v. 
Massachusetts,  383  U.S.  413  (1966)  (defining  unprotected  obscenity  as  having  a  domi- 
nant theme  appealing  to  prurient  interest,  "patently  offensive,"  and  "utterly  without 
redeeming  social  value")  .  See  also  Cohen  v.  California,  403  U.S.  15  (1971) ;  (reversing 
breach  of  peace  conviction  for  wearing  jacket  bearing  obscene  words)  Comment, 
Purging  Unseemly  Expletives  from  the  Public  Scene:  A  Constitutional  Dilemma,  47 
Ind.  L.J.  142   (1971) . 

(3)  Libel  -  Beauharnais  v.  Illinois,  343  U.S.  250  (1952)  .  But  see  New  York 
Times  v.  Sullivan,  376  U.S.  254  (1964)  (libel  of  public  officials  not  actionable 
unless  made  with  "actual  malice") .  See  also  Garrison  v.  Louisiana,  379  U.S.  64   (1964) 

(applying  New  York  Times  standard  to  criminal  defamation) ;  Pickering  v.  Board  of 
Educ,  391  U.S.  563  (1968)  (applying  New  York  Times  standard  to  school  board's 
retaliatory   dismissal   of   critical    teacher) . 

(4)  Speech  presenting  "Clear  and  Present  Danger"  -  Brandenburg  v.  Ohio,  395 
U.S.  444  (1969) ;  Dennis  v.  United  States,  341  U.S.  494  (1951) ;  Whitney  v.  California, 
274  U.S.  357,  372-78  (1927)  (Brandeis,  J.,  concurring) ;  Gitlow  v.  New  York,  268  U.S. 
652,  672-73   (1925)    (Holmes,  J.,  dissenting) ;  Schenck  v.  United  States,  249  U.S.  47,  52 

(1919) .  See  generally  Strong,  Fifty  Years  of  "Clear  and  Present  Danger":  From 
Schenck  to  Brandenburg  and  Beyond,  1969  S.  Ct.  Rev.  41. 

2operry  v.  Sindermann,  408  U.S.  593,  599  (1972)  ;  Board  of  Regents  v.  Roth,  408 
U.S.  564  (1972)  (at  least  where  termination  causes  no  "stigma")  ;  cf.  Drown  v. 
Portsmouth  School  Dist.  435  F.2d  1182  (1st  Cir.  1970)  (reasons  required  but  no 
hearing) ;  Pred  v.  Board  of  Pub.  Instr.,  415  F.2d  851  (5th  Cir.  1969) .  But  cf.  Freeman 
v.  Gould  Special  School  Dist.,  405  F.2d  1153  (8th  Cir.  1969)  (hearing  not  required 
for  nontenured  teacher  unless  reasons  are  stated) .  But  see  Ferguson  v.  Thomas, 
430  F.2d  852,  856  (5th  Cir.  1970)  (hearing  required  if  nontenured  teacher  has  "ex- 
pectancy" of  continued  employment) . 

siBoard  of  Regents  v.  Roth,  408  U.S.  564,  571  (1972) ;  Perry  v.  Sindermann,  408 
U.S.  593,  597-98  (1972) ;  Graham  v.  Richardson,  403  U.S.  365,  374  (1971) ;  Pickering  v. 
Board  of  Educ.  391  U.S.  563,  568  (1968) ;  Keyishian  v.  Board  of  Regents,  385  U.S.  589, 
606  (1967) ;  Sherbert  v.  Verner,  374  U.S.  398,  404  (1963) .  The  right-privilege  dis- 
tinction originated  with  a  statement  by  Mr.  Justice  Holmes  in  McAulifee  v.  Mayor 


1973]  RECENT  DECISIONS  541 

public  employment  is  merely  a  privilege,  and  not  a  right,  the  govern- 
ment has  not  been  given  unlimited  discretion  in  its  decisions  to  termi- 
nate such  privileges.  The  government  may  not  terminate  the  privilege 
"on  a  basis  that  infringes  [one's]  constitutionally  protected  interests  — 
especially,  [one's]  interest  in  freedom  of  speech."22  This  rule  has  been 
specifically  applied  to  the  nonrenewal  of  a  nontenured  teacher's  con- 
tract.23 Although  first  amendment  protections  are  especially  valuable  in 
the  educational  arena,24  the  courts  have  stated  that  the  teacher's  interests 
as  a  commentator  on  public  issues  should  be  balanced  with  the  state's 
interest  in  securing  an  orderly,  efficient  educational  process.25 

In  the  instant  case,  the  court  ruled  that  the  President's  cabinet 
could  not  be  disqualified  per  se  from  reviewing  Mrs.  Duke's  dismissal 
solely  because  its  members  were  employees  of  the  Board  of  Regents  who 
had  investigated  the  charges  and  initiated  the  action.  The  court  found 
that  the  evidence  produced  by  Mrs.  Duke  was  inconclusive,  and  stated 
that  absent  a  showing  of  actual  bias  or  prejudice,  the  cabinet's  conclu- 
sions should  not  be  disturbed  unless  found  to  be  unsupported  by  sub- 
stantial evidence.  The  court  therefore  concluded  that  the  cabinet  was 
justified  in  ruling  that  Mrs.  Duke's  crude  exercise  of  free  speech  had 
impaired  her  effectiveness  as  an  instructor  seriously  enough  to  justify 
her  dismissal. 

Judge  Godbold  in  a  lengthy  dissent  said  that  the  "apparent  impar- 
tiality" test  of  Ferguson  v.  Thomas26  had  not  been  met  by  the  tribunal 
in  the  instant  case.  Judge  Godbold  stressed  that  "apparent  impartiality" 
refers  to  the  competency  of  the  tribunal  to  hear  the  matter,  rather  than 
the  tribunal's  actions  once  convened.  Since  the  instant  tribunal  was  the 
victim  of  the  abusive  statements,  the  investigator  of  the  charges,  and  the 

of  New  Bedford,  155  Mass.  216,  220,  29  N.E.  517-18  (1892) ,  and  was  unchallenged 
until  Bomar  v.  Keyes,  162  F.2d  136  (2d  Cir.  1947)  .  See  generally  Van  Alstyne,  The 
Demise  of  the  Right— Privilege  Distinction  in  Constitutional  Law,  81  Harv.  L.  Rev. 
1439    (1968). 

22Perry  v.  Sindermann,  408  U.S.  593,  597  (1972)  ;  Pickering  v.  Board  of  Educ,  391 
U.S.  563,  658  (1968) ;  Keyishian  v.  Board  of  Regents,  385  U.S.  589,  605-06  (1967)  ; 
Shelton  v.  Tucker,  364  U.S.  479  (1960) ;  Wieman  v.  Updegraff,  344  U.S.  183  (1952)  ; 
Ferguson  v.  Thomas,  430  F.2d  852,  857  (5th  Cir.  1970) ;  Pred  v.  Board  of  Pub.  Instr., 
415  F.2d  815-57    (5th  Cir.  1969) . 

23"[T]he  nonrenewal  of  a  nontenured  public  school  teacher's  one-year  contract 
may  not  be  predicated  on  his  exercise  of  First  and  Fourteenth  Amendment  rights." 
Perry  v.  Sindermann,  408  U.S.  593,  598  (1972)  .  See  Keyishian  v.  Board  of  Regents,  385 
U.S.  589,  605-06  (1967)  ;  Shelton  v.  Tucker,  364  U.S.  479  (1960) ;  Ferguson  v.  Thomas, 
430  F.2d  852,  857    (5th  Cir.   1970). 

24Healy  v.  James,  408  U.S.  169,  180  (1972) ;  Tinker  v.  Des  Moines  Indep.  Com- 
munity School  Dist.,  393  U.S.  503,  512  (1969)  ;  Keyishian  v.  Board  of  Regents,  385 
U.S.  589,  603   (1967)  ;  Shelton  v.  Tucker,  364  U.S.  479,  487   (1960) . 

25Pickering  v.  Board  of  Educ,  391  U.S.  563,  568  (1968) ;  Moore  v.  Winfield  City 
Bd.  of  Educ.  452  F.2d  726,  728  (5th  Cir.  1971)  ;  Ferguson  v.  Thomas,  430  F.2d  852, 
859  (5th  Cir.  1970) ;  cf.  Healy  v.  James,  408  U.S.  169  (1972) ;  Tinker  v.  Des  Moines 
Indep.  Community  School  Dist.,  393  U.S.  503,  506-07    (1969)  . 

26430  F.2d  852,  856    (5th  Cir.  1970)  . 


542  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

instigator  of  the  action  being  reviewed,  it  was  not  sufficiently  detached 
from  the  controversy  to  meet  the  "apparent  impartiality"  test.  He  fur- 
ther stated  that  the  majority's  "actual  partiality"  test  was  not  a  plausible 
substitute  for  the  more  widely  accepted  "apparent  impartiality"  test. 
Since  Judge  Godbold  felt  that  there  was  sufficient  evidence  in  the  record 
to  support  the  district  court's  finding  that  the  cabinet  lacked  the  re- 
quired detachment  for  apparent  impartiality,  he  concluded  that  the  ap- 
pellate court  was  precluded  from  overruling  such  findings  unless  plainly 
erroneous. 

The  majority's  requirement  that  actual  prejudice  be  shown  before 
the  conclusions  of  an  academic  hearing  body  may  be  reviewed  de  novo 
in  federal  court  will  undoubtedly  foster  a  greater  degree  of  control  by 
school  administrators  over  school  matters.  To  the  extent  that  this  greater 
control  facilitates  smoother  school  operations  and  more  orderly  and 
efficient  education,  the  law  has  been  improved  by  the  Duke  decision.27 
If,  however,  this  greater  control  engenders  arbitrariness  or  the  use  of 
fictitious  reasons  to  cloak  the  otherwise  impermissible  stifling  of  criti- 
cism, the  Duke  decision  has  done  the  law  a  disservice.28  If  the  hearing 
given  Mrs.  Duke  is  not  to  be  invalidated  for  lack  of  apparent  impartial- 
ity, it  is  difficult  to  imagine  a  hearing  that  would  be  invalid.  The  cabi- 
net not  only  shared  the  brunt  of  Mrs.  Duke's  opprobrious  epithets  with 
the  Regents,29  but  members  of  the  cabinet,  at  the  Regent's  suggestion, 
also  investigated  the  charges  and  made  the  initial  dismissal  decision.30 
If  the  college  environment  really  is  "peculiarly  the  'marketplace  of 
ideas,'  "31  then  any  opportunity  presented  to  school  officials  to  hamper 
the  vigorous  exchange  of  ideologies  should  be  viewed  with  dismay.  The 
majority's  "actual  prejudice"  rule  is  such  an  opportunity,  because  under 
it  the  difficulty  of  proving  an  official's  mental  disposition32  mitigates 

2?Shanley  v.  Northeast  Indep.  School  Dist.,  462  F.2d  960  (5th  Cir.  1972) .  See  Pick- 
ering v.  Board  of  Educ,  391  U.S.  563,  568    (1968) . 

28"When  a  violation  of  First  Amendment  rights  is  alleged,  the  reasons  for  dis- 
missal .  .  .  must  be  examined  to  see  if  the  reasons  given  are  only  a  cloak  for  activity 
or  attitudes  protected  by  the  Constitution."  Board  of  Regents  v.  Roth,  408  U.S.  564, 
583  (1972)  (Douglas,  J.,  dissenting) .  In  a  case  strikingly  similar  to  Duke,  Justice 
Marshall  noted  for  the  Court  that  "we  feel  free  to  examine  the  evidence  .  .  . 
completely  independently  and  to  afford  little  weight  to  the  factual  determinations 
made  by  the  Board."  Pickering  v.  Board  of  Educ,  391  U.S.  563,  578-79  n.2    (1968) . 

29\vhere  the  "trier  of  fact  was  the  same  body  that  was  also  the  victim  .  .  .  and 
the  prosecutor,"  the  Court  recognized  the  "obvious  defects  in  the  fact-finding  pro- 
cess." Pickering  v.  Board  of  Educ,  391  U.S.  563,  578-79  n.2  (1968).  "No  one  so 
cruelly  slandered  is  likely  to  maintain  that  calm  detachment  required  for  fair  adjudi- 
cation." Mayberry  v.  Pennsylvania,  400  U.S.  455,  465    (1971) . 

30"It  is  too  clear  to  require  argument  or  citation  that  a  fair  hearing  presupposes 
an  impartial  trier  of  fact  and  that  prior  official  involvement  in  a  case  renders  im- 
partiality most  difficult  to  mantain."  Wasson  v.  Trowbridge,  382  F.2d  807,  813  (2d 
Cir.  1967) .  See  also  Pickering  v.  Board  of  Educ,  391  U.S.  563,  578-79  n.2   (1968) . 

siHealy  v.  James,  408  U.S.  169,  180   (1972) . 

32"[N]othing  can  be  more  elusive  of  estimate  or  decision  than  a  disposition  of  a 
mind  in  which  there  is  a  personal  ingredient."  Berger  v.  United  States,  255  U.S.  22, 
36    (1921). 


1973]  RECENT  DECISIONS  543 

directly  against  the  chances  of  obtaining  an  independent  review  of  the 
facts.  In  most  cases,  academic  experts,  rather  than  the  courts,  should 
make  school  decisions,33  but  when  constitutional  rights  are  infringed  and 
the  academic  hearing  body  is  not  sufficiently  detached  from  the  contro- 
versy to  possess  apparent  impartiality,34  the  reviewing  court  should  be 
allowed  to  try  the  facts  de  novo.35 

The  district  judge  was  on  solid  ground  when  he  held  that  forbidding 
particular  words  entails  a  risk  of  suppressing  ideas  and  is  therefore  im- 
permissible.36 The  use  of  strong,  even  profane,  language  should  not  be 
penalized  where  the  speaker  feels  that  such  language  is  necessary  to 
convey  his  sincere  convictions.  Moreover,  the  district  court's  finding  that 
no  substantial  university  interest  had  been  infringed  was  supported  both 
by  evidence  and  by  precedent.37  While  the  evidence  conflicted  as  to  the 
degree  Mrs.  Duke's  teaching  effectiveness  was  impaired,  certainly  the 
district  judge's  finding  of  no  serious  impairment  was  based  more  on  an 
impartial  evaluation  of  objective  evidence  than  was  the  contrary  con- 
clusion of  the  cabinet  and  Regents. 

In  conclusion,  the  majority's  positions  on  both  the  issues  of  proce- 
dural fairness  and  free  speech  are  not  supported  either  by  precedent  or 
policy.  Adoption  of  Judge  Godbold's  interpretation  of  the  requirement 
of  apparent  impartiality  and  the  district  judge's  position  on  first  amend- 
ment protection  for  strong  language  would  have  gone  further  toward 
keeping  the  academic  "marketplace  of  ideas"  open  for  business. 

Eugene  T.  Holmes 

33Shanley  v.  Northeast  Indep.  School  Dist.,  462  F.2d  960    (5th  Cir.  1972)  . 
34Ferguson  v.  Thomas,  430  F.2d  852,  856   (5th  Cir.  1970) . 
35Pickering  v.  Board  of  Educ,  391  U.S.  563,  578-79  n.2   (1968)  . 
seCohen  v.  United  States,  403  U.S.   15    (1971) . 

37For  a  discussion  of  the  interests  of  the  individual  and  the  school,  see  Wright, 
The  Constitution  on  the  Campus,  22  Vand.  L.  Rev.  1027    (1969). 


544  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Constitutional  Law  —  Civil  Commitment  Proceedings  —  Due  Process 
Required 

Petitioner  was  involuntarily  committed  to  a  Wisconsin  mental  in- 
stitution.1 She  subsequently  brought  suit  in  Federal  District  Court  for 
the  Eastern  District  of  Wisconsin2  alleging3  that  Wisconsin's  civil  com- 
mitment statutes4  were  unconstitutional  under  the  due  process  clause  of 
the  14th  amendment.5  Declaratory  and  injunctive  relief  was  sought.6 
The  court  found  that  substantial  constitutional  issues  had  been  raised 
by  the  complaint,  and  a  three-judge  court  was  convened.7  The  three- 
judge  court,  held,  relief  granted.  In  civil  commitment  proceedings,  no 
person  may  be  committed  to  a  mental  institution  without  a  right  to 
timely  notice  of  the  charges  and  hearing,  a  right  to  a  speedy  preliminary 
and  full  hearing  on  the  charges,  a  right  to  notice  of  a  trial  by  jury,  a 
right  to  counsel,  a  right  to  confrontation  and  cross-examination,  a  right 
to  the  privilege  against  self-incrimination,  a  right  to  exclude  hearsay 
evidence,  and  the  right  of  having  the  state  bear  the  burden  of  proving 
that  the  defendant  is  both  mentally  ill  and  dangerous  beyond  a  reason- 
able doubt.  Lessard  v.  Schmidt,  349  F.  Supp.  1078  (E.D.  Wis.  1972) . 

In  the  American  colonial  period,  laws  regarding  the  insane  focused 
on  the  financial  plight  of  the  individual  rather  than  on  healing  his 
affliction.8  As  a  continuation  of  the  development  of  the  English  Eliza- 
bethen  Poor  Laws,9  which  provided  local  care  for  the  poor,  towns  as- 
sumed an  obligation  to  care  for  those  persons  who  were  members  of  the 

iThe  petitioner  was  involuntarily  taken  to  the  Mental  Health  Center  North 
Division,  in  Milwaukee,  by  two  police  officers  and  was  detained  there  for  emergency 
observation   pursuant   to   Wisconsin's  civil   commitment   statutes. 

2Petitioner  brought  a  class  action  suit  on  behalf  of  herself  and  all  persons  18  years 
of  age  or  older  who  had  been  committed  pursuant  to  Wisconsin's  civil  commitment 
statutes. 

3Petitioner  specifically  alleged  that  the  Wisconsin  commitment  statutes  failed 
to  accord  her  the  due  process  guarantees  of  a  right  to  timely  notice  of  the  charges, 
a  right  to  timely  notice  of  the  hearings,  a  right  to  trial  by  jury,  a  right  to  counsel, 
a  right  to  confrontation  and  cross-examination,  a  right  of  privilege  against  self- 
incrimination,  a  right  to  be  committed  only  if  proven  insane  beyond  a  reasonable 
doubt,  a  right  to  exclude  hearsay  evidence,  and  a  right  to  provide  a  comprehensible 
standard  upon  which  a  person  may  be  committed. 

4  Wis.  Stat.  §§  51.02-.04  (Supp.  1972) . 

5TJ.S.  Const,  amend.  XIV. 

eThe  petitioner  sought  declatory  relief  under  28  U.S.C.  §2201  (1970) ,  and  injunc- 
tive relief  under  42  U.S.C.  §  1983  (1970)  .  Although  the  court  stated  that  jurisdiction 
was  granted  under  42  U.S.C.  §  1983,  it  appears  that  such  language  was  erroneous  and 
that  the  statute  is  remedial  and  not  jurisdictional. 

728  U.S.C.  §  2281  (1970)  .  This  section  requires  the  convening  of  a  three-judge 
federal  court  to  determine  whether  a  state's  statute  is  unconstitutional  and  to  issue 
an  injunction  to  restrain  a  state  official  from  acting  pursuant  to  the  statute  if  the 
statute  is  found  to  be  unconstitutional. 

8D.  Rotiiman,  The  Discovery  Of  The  Asylum  4   (1971) . 

*>A.  Deutsch,  The  Mentally  III  In  America  44  (1946) . 


1973]  RECENT  DECISIONS  545 

community  and  unable  to  care  for  themselves.10  As  a  result  of  the 
philosophies  of  the  "Age  of  Enlightment"  the  American  attitude  to- 
wards the  proper  care  for  the  mentally  ill  changed.11  This  change  resulted 
in  acceptance  of  the  Enlightenment  philosophy  which  proposed  that  a 
restructuring  of  the  environment  would  cure  mental  illness.12  It  was 
suggested  that  the  mentally  ill  would  be  cured  by  removing  them  from 
the  community  and  placing  them  in  an  institutional  environment.13 
However,  a  movement  advocating  the  drafting  of  new  commitment  laws 
and  picturing  the  medical  superintendents  as  "evil  men"  pressured  a  few 
state  legislatures  into  enacting  new  laws  regarding  commitment.14  Re- 
sponding to  the  call  for  stricter  laws  to  safeguard  the  rights  of  individuals 
who  were  to  be  committed,  a  few  state  courts  began  to  strictly  enforce 
the  due  process  rights  of  notice,15  confrontation,16  trial  by  jury,17  and 
the  right  to  detain  only  upon  a  showing  of  dangerousness.18 

The  majority  of  states,  however,  expanded  their  authority  to  commit 
an  individual  upon  the  theory  that  the  state,  as  parens  patriae,  has  the 
duty  to  care  for  the  humane  needs  of  its  citizens.19  It  was  this  further 
expansion  of  the  parens  patriae  doctrine,  together  with  the  pressure 
from  the  psychiatric  community  that  eroded  the  then-developing  due 
process  safeguards.20   Where  some  courts  had  previously  adhered  strictly 

nN.  Dain,  Concepts  Of  Insanity  in  the  United  States  1789-1865  at  11  (1964). 
Dain  relates  that  because  of  the  advances  in  scientific  and  political  thought,  18th 
century  man  was  convinced  that  by  environmental  control  man  could  improve  his 
life. 

12D.  Rothman,  supra  note  8,  at  129. 

13/d. 

i*A.  Deutsch,  supra  note  9,  at  423.  Deutsch  told  about  the  famous  commitment 
of  Mrs.  Packard,  who  was  involuntarily  committed  to  a  mental  institution  at  the 
insistence  of  her  husband.  Mrs.  Packard  was  eventually  released  and  started  a  move- 
ment for  the  drafting  of  commitment  laws  that  would  ensure  procedural  safeguards 
in  commitment  proceedings.  See  Ray,  Confinement  Of  The  Insane,  3  Am.  L.  Rev. 
193,  194    (1869). 

is£.g.,  Eddy  v.  People  ex  rel.  Eddy,  15  111.  386,  387  (1854);  In  re  Vanauken, 
10  N.J.  Eq.  186,  190    (Ch.  1854)  . 

i6/n  re  Vanauken,  10  N.J.  Eq.  186,  190    (Ch.  1854) . 

irMenifee  v.  Ends,  97  Ky.  388,  30  S.W.  881,  882  (1895) ;  see,  e.g.,  In  re  Conover, 
28  N.J.  Eq.  330,  331    (Ch.  1877)  . 

i&See,  e.g.,  Keleher  v.  Putnam,  60  N.H.  30,  31  (1880) ;  Ayer's  Case,  3  Abb. 
N.  Cas.  218,  220    (N.Y.  1877)  . 

isMost  authorities  believe  that  the  state's  power  to  commit  is  based  upon  the  two 
principles  of  police  power  and  parens  patriae.  E.g.,  Taylor,  A  Critical  Look  Into 
the  Involuntary   Civil  Commitment  Procedure,   10  Washburn   L.J.   237,  239    (1971) . 

20Ray,  supra  note  14,  at  216.  The  author  points  out  that  the  Association  of 
Medical  Superintendents  of  North  American  Hospitals  for  the  Insane,  unanimously 
sanctioned  a  project  whereby  persons  could  be  committed  simply  upon  certification 
of  one  or  more  registered  physicians,  and  left  to  the  legal  process  simply  the 
acknowledgement  of  the  genuineness  of  the  signatures  on  the  certificate. 


546  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

to  the  due  process  rights  of  notice  and  confrontation,21  the  United  States 
Supreme  Court  in  Simon  v.  Craft,22  and  Chaloner  v.  Sherman2*  held 
that  while  notice  and  an  opportunity  to  contest  were  essential  elements 
of  due  process,  the  right  of  an  allegedly  mentally  ill  individual  to  con- 
front his  adversaries  personally  in  court  was  not  essential  to  due  pro- 
cess.24 While  the  federal  courts  acknowledged  the  right  of  an  allegedly 
mentally  ill  person  to  fair  notice  and  to  a  hearing  on  the  charges,25  they 
proceeded  to  relax  the  requirement  of  a  speedy  hearing  and  held  that 
proceedings  need  only  be  held  within  a  reasonable  time.26  This  "reason- 
ableness of  time"  doctrine  appeared  to  allow  prolonged  detention  for 
those  allegedly  dangerous  mentally  ill  defendants  in  emergency  situa- 
tions, as  long  as  the  defendants  were  guaranteed  a  hearing  at  a  later 
date.27  In  addition  to  the  relaxation  of  the  right  to  a  speedy  hearing  and 
confrontation,  the  courts  have  also  altered  the  nature  of  the  conduct 
necessary  for  commital.  Where  some  courts  had  previously  allowed  com- 
mitment only  upon  a  showing  of  dangerousness,28  others  began  commit- 
ing  persons  who,  though  not  necessarily  dangerous,  were  simply  in  need 
of  care  and  treatment.29  Responding  to  this  abridgement  of  rights,  re- 
cent federal  decisions  indicate  that  the  law  will  allow  commitment  only 

siEddy  v.  People  ex  rel.  Eddy,  15  111.  386  (1854) ;  In  Re  Vanauken,  10  N.J.  Eq. 
186   (Ch.  1854) . 

22182  U.S.  427,  436    (1901) . 

23242  U.S.  455,  461    (1917) . 

24ln  Simon,  Mrs.  Simon  acquired  counsel  to  represent  her,  but  she  was 
physically  prevented  from  attending  the  hearing  pursuant  to  an  Alabama  statute 
which  allowed  a  sheriff  to  confine  an  allegedly  mentally  ill  defendant  and  prevent 
the  defendant  from  attending  his  own  trial,  if,  in  the  sheriff's  discretion,  the 
defendant  was  not  in  a  fit  condition  to  attend.  The  Supreme  Court  found  this 
statute  to  be  constitutional.  In  addition,  the  Supreme  Court,  in  Chaloner,  upheld 
a  New  York  court  decision  where  an  allegedly  mentally  ill  defendant  had  a  com- 
mittee of  his  person  and  estate  appointed  while  he  was  involuntarily  confined  in  a 
mental  institution.  The  Supreme  Court  determined  that  the  due  process  requirements 
were  fulfilled  when  he  was  personally  served  with  notice  and  rejected  the  de- 
fendant's contention  that  he  was  denied  due  process  because  he  was  physically 
prevented  from  attending  the  hearing. 

25Barry  v.  Hall,  98  F.2d  222,  225    (D.C.  Cir.  1938) . 

26/„  re  Barnard,  455  F.2d  1370,  1374   (D.C.  Cir.  1971) . 

27Miller  v.  Blalock,  411  F.2d  548,  549  (4th  Cir.  1969);  Fhagen  v.  Miller,  306  F. 
Supp.  634,  638  (S.D.N.Y.  1969) ,  federal  court  abstention  in  312  F.  Supp.  323 
(S.D.N.Y.  1970) .  In  Fhagen,  the  defendant  was  detained  21  days  for  observation 
without  a  hearing,  but  the  federal  district  court  held  this  to  be  a  valid  restraint 
since  the  defendant  could  have  a  hearing  at  a  later  date. 

28Ayer's  Case,  3  Abb.  N.  Cas,  218    (N.Y.  1877)  . 

29/n  re  Hobart,  76  Ohio  App.  80,  81,  145  N.E.2d  205  (Ohio  Ct.  App.  1956), 
appeal  dismissed,  355  U.S.  21  (1957);  see  Sanchez  v.  State,  80  N.M.  438,  457  P.2d 
370,  372  (1968) ,  appeal  dismissed,  396  U.S.  276  (1969) .  Although  the  Supreme  Court 
in  Sanchez  intimates  that  the  defendant  was  dangerous  to  himself,  and  therefore 
properly  committed,  the  Supreme  Court  stated  that  persons  simply  in  need  of  care 
and   treatment  could   be  legally  committed. 


1973]  RECENT  DECISIONS  547 

upon  a  showing  of  dangerousness.30  Another  effort  by  the  states  to  erode 
the  developing  due  process  safeguards  was  recognized  in  the  abolition 
of  a  mandatory  right  to  trial  by  jury  in  commitment  proceedings.  A 
federal  court  in  U.S.  ex  rel.  Morgan  v.  Wolfe31  held 

It  should  be  noted  that  the  Fourteenth  Amendment's  due  pro- 
cess clause  does  not  impose  a  constitutional  obligation  upon 
the  states  to  provide  trial  by  jury  in  civil  cases  in  general  and 
involving  the  issue  of  insanity  in  particular. 

The  resultant  change  was  brought  about  through  psychiatric  circles 
which  claimed  that  it  would  be  detrimental  to  the  mentally  ill  patient 
to  face  a  jury,  since  it  would  embarrass  him  and  aggravate  his  condi- 
tion.32 The  statutes  in  some  jurisdictions,  as  a  result  of  the  influence 
of  the  psychiatric  community  have  gone  so  far  as  to  allow  an  allegedly 
mentally  ill  defendant  a  jury  trial  only  upon  demand.33  In  addition, 
although  the  Supreme  Court  has  not  spoken  on  the  constitutional  right 
to  counsel  in  civil  commitment  proceedings,  it  appears  that  state  curtail- 
ment of  this  right  may  be  rendered  unconstitutional  in  light  of  federal 
cases  in  similar  situations.34  In  their  role  as  parens  patriae,  the  states, 
with  the  approval  of  at  least  one  federal  court,35  have  further  tried  to 
limit  the  due  process  requirement  by  declaring  that  commitment  is 
justified  upon  a  showing  by  a  preponderance  of  the  evidence  that  the 
accused  is  insane.  The  states  have  contended  that  this  burden  of  proof 
is  all  that  is  necessary,  because  commitment  proceedings  are  civil  actions 
wherein  the  requirement  of  proof  is  a  preponderance  of  the  evidence. 
Although  this  requirement  has  met  with  some  approval,36  recent  history 
indicates  that  where  deprivation  of  liberty  is  at  stake,  the  highest  degree 
of  proof,  proof  beyond  a  reasonable  doubt,  is  necessary  for  confinement.37 
Merely  calling  a  proceeding  a  civil  action  will  not  relax  strict  adherence 
to  due  process  requirements.  In  addition,  the  states  in  commitment  pro- 
ceedings have  introduced  evidence  of  statements  made  by  the  defendant 
to  the  psychiatrists  while  failing  to  advise  the  allegedly  mentally  ill  of 
his  privilege  against  self-incrimination.  While  the  courts  have  failed  to 
speak  to  this  issue,  Justice  Douglas,  in  a  recent  Supreme  Court  opinion 
implied  that  the  fifth  amendment  protection  against  self-incrimination 
should  apply  in  commitment  proceedings.38 

3o£.g.,  Lake  v.  Cameron,  364  F.2d  657,  659    (D.C.  Cir.  1966) . 

31232  F.  Supp.  85,  97   (S.D.N.Y.  1964)  . 

32Comment,  Analysis  of  Legal  and  Medical  Considerations  in  Commitment  of  the 
Mentally  III,  56  Yale  LJ.  1178,  1193    (1947). 

33£.g.,  Wis.  Stat.  Ann.  §  51.03    (1957) . 

34Heryford  v.  Parker,  396  F.2d  393,  396  (10th  Cir.  1968) ;  Dooling  v.  Overholser, 
243  F.2d  825,  827    (D.C.  Cir.  1957)  . 

zsSee  Tippet  v.  State,  436  F.2d  1153,  1159  (4th  Cir.  1971),  cert,  denied  sub.  nom. 
Murel  v.  Baltimore  Crim.  Court,  407  US.  355    (1972) . 

36/rf. 

nSee  In  re  Winship,  397  U.S.  358,  365   (1970) . 

ssMcNeil  v.  Director  of  Patuxent  Institution,  407  U.S.  245,  255  (1972)  (con- 
curring opinion)  . 


548  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

In  the  instant  case  the  court  stated  that  since  an  adjudication  of 
mental  illness  in  Wisconsin  carries  with  it  a  loss  of  basic  civil  rights  and 
loss  of  future  opportunity,  the  interests  in  avoiding  civil  commitment  are 
at  least  as  high  as  those  of  persons  accused  of  criminal  offenses.  There- 
fore, the  resulting  burden  on  the  state  to  justify  civil  commitment  must 
be  correspondingly  high.  The  court  then  held  that  the  Wisconsin  civil 
commitment  statutes,39  which  failed  to  provide  the  procedural  safeguards 
necessary  to  sustain  this  burden,  violated  the  due  process  clause  of  the 
14th  amendment.  The  court  concluded  that  in  civil  commitment  pro- 
ceedings no  person  may  be  committed  to  a  mental  institution  without  a 
right  to  timely  notice  of  the  charges  and  hearing,  a  right  to  a  speedy 
preliminary  and  full  hearing  on  the  charges,40  a  right  to  notice  of  a  trial 
by  jury,  a  right  to  counsel,  a  right  to  confrontation  and  cross-examina- 
tion, a  right  to  the  privilege  against  self-incrimination,41  a  right  to  ex- 
clude hearsay  evidence,  and  the  right  of  having  the  state  bear  the  burden 
of  proving  that  the  defendant  is  both  mentally  ill  and  dangerous  beyond 
a  reasonable  doubt. 

This  decision  reflects  a  current  trend  of  the  lower  courts  to  protect 
the  "fundamental  rights"  of  all  citizens,  and  also  a  return  to  older  com- 
mitment decisions  where  the  constitutional  rights  of  due  process  were 
zealously  guarded.  The  instant  opinion  and  recent  federal  court  deci- 
sions42 indicate  that  a  state's  desire  to  aid  those  in  need  of  psychiatric 
care  cannot  be  manifested  by  depriving  an  individual  of  his  constitu- 
tional rights.  The  instant  opinion  provides  an  excellent  outline  for 
states,  including  Mississippi,  which  need  to  revise  their  present  civil 
commitment  statutes.  Revised  statutes  should  be  remedial  rather  than 
custodial,  and  they  should  be  so  structured  as  to  allow  both  the  legal 
and  medical  professions  to  work  together  to  protect  both  the  citizen's 
mental  health  and  his  constitutional  rights.  The  need  for  revision  in 
Mississippi  is  apparent  since  Mississippi's  commitment  statutes,43  like 
the  statutes  in  the  instant  case,  provide  scant  due  process  protection: 
there  are  no  provisions  regarding  a  guaranteed  right  to  notice  of  trial 
by  jury,  the  right  to  counsel,  or  the  right  to  a  mandatory  hearing.  More- 
over, the  Mississippi  statutes  indicate  that  one  who  simply  is  in  need 
of  care  and  treatment  and  not  necessarily  dangerous  may  be  committed. 
If  the  state  legislatures,  however,  fail  to  draft  new  commitment  laws, 
perhaps  the  only  solution  would  be  for  the  Supreme  Court  to  create 

39Wis.  Stat.  Ann.  §§  51.02-.04    (Supp.  1972). 

4oThe  court  ruled  that  the  maximum  period  of  time  that  a  person  may  be  de- 
tained pursuant  to  a  commitment  statute  was  48  hours. 

41U.S.  Const,  amend.  V. 

42Heryford  v.  Parker,  396  F.2d  393  (10th  Cir.  1968) ;  Dixon  v.  Attorney  Gen.,  325 
F.  Supp.  966  (M.D.  Pa.  1971) ;  Wyatt  v.  Stickney,  325  F.  Supp.  781  (M.D.  Ala.  1971) , 
modified,  334  F.  Supp.  1341  (M.D.  Ala.  1971)  .  In  Wyatt,  a  federal  district  court  in 
Alabama  expanded  the  due  process  rights  of  those  committed  to  include  the  right  to 
have  adequate  treatment  provided  after  being  committed.  But  see  Burnham  v.  De- 
partment of  Pub.  Health,  349  F.  Supp.  1335    (N.D.  Ga.  1972) . 

43Miss.  Code  Ann.  6909-03    (1952) ;  Miss.  Code  Ann.  §§  6909-07,  -08    (Supp.  1972)  . 


1973]  RECENT  DECISIONS  549 

standards  in   the  area  of  mental  health.    Indeed,   the  Supreme   Court 
appears  to  be  headed  in  this  direction.44 

Although  this  decision  goes  a  long  way  in  guaranteeing  due  process 
safeguards  in  civil  commitment  proceedings,  the  ultimate  solution  in  the 
mental  health  area  will  not  be  reached  until  we  take  a  more  realistic 
view  of  mental  illness.  The  standards  outlined  may  be  too  simplistic  to 
be  truly  beneficial  to  those  persons  alleged  to  be  mentally  ill.  The  legal 
profession  must  realize  that  the  Enlightenment  philosophy  of  institu- 
tionalizing individuals  to  cure  insanity  has  failed.45  Therefore,  perhaps 
the  most  helpful  change  in  the  field  of  mental  health  would  be  to  dis- 
continue the  placement  of  persons  in  mental  institutions  in  all  cases 
except  where  the  person  has  exhibited  extremely  dangerous  behavior.46 
In  other  cases,  perhaps  the  best  solution  would  be  to  revert  to  the 
colonial  period  practice  of  having  communities  care  for  the  mentally  ill 
through  outpatient  clinics.47  These  clinics  could  be  funded  by  money 
now  spent  on  mental  institutions. 

Mark  Phillip  Rabinowitz 


44jackson  v.  Indiana,  406  U.S.  715,  736-37  (1972)  .  The  Supreme  Court,  in 
Jackson  stated,  "The  States  have  traditionally  exercised  broad  power  to  commit 
persons  mentally  ill.  .  .  .  Considering  the  number  of  persons  affected,  it  is  perhaps 
remarkable  that  the  substantive  constitutional  limitations  on  this  power  have  not 
been  more  frequently  litigated." 

45D.  Rothman,  supra  note  8,  at  238.  Rothman  relates  that  the  quick  curative 
measures  of  the  mental  institution  proved  to  be  wrong  as  early  as  the  late  19th 
century. 

46This,  of  course,  would  not  pertain  to  those  persons  who  voluntarily  commit 
themselves. 

47lt  appears  that  Congress  in  passing  the  Community  Mental  Health  Centers  Act, 
Pub.  L.  No.  88-164,  tit.  II,  77  Stat.  290,  as  amended  42  U.S.C.  §  2681-87  (1970), 
authorizing  federal  funding  to  community  mental  health  centers,  was  responding 
to  the  need  for  community  care  for  the  mentally  ill.  However,  the  proposed  federal 
budget  for  1974,  while  attempting  to  provide  approximately  the  same  services  to 
already  existing  mental  health  services,  fails  to  provide  funds  for  the  continued 
construction  of  community  mental  health  centers.  Approximately  14  million  dollars 
was  spent  on  the  construction  of  community  mental  health  centers  in  1973.  It  is 
senseless  to  cease  construction  of  new  mental  health  centers  when  the  need  for  more 
centers  is  great.  Executive  Office  of  the  President,  Office  of  Management  and 
Budget,  The  Budget  of  the  United  States  Government,  1974-Appendix  379    (1973) . 


550  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Constitutional  Law  —  Corporal  Punishment  —  School  Policy  Per- 
mitting Corporal  Punishment  Without  Parental  Consent  Is  Not 
Unconstitutional 

Plaintiffs1  filed  a  class  action  in  federal  district  court2  seeking  to 
enjoin  defendant  school  officials  from  administering  corporal  punish- 
ment3 in  the  Dallas  Independent  School  District  without  the  permission 
of  parents.4  Plaintiffs  contended  that  such  punishment  violates  their 
rights  guaranteed  by  the  eighth  and  14th  amendments  to  the  Constitu- 
tion. Defendants  contended  that  the  district's  policy  is  the  best  measure 
available  to  maintain  discipline  among  some  students.  The  district 
court,  held,  where  evidence  does  not  show  that  a  school  district's  policy 
authorizing  the  use  of  corporal  punishment  is  arbitrary,  capricious,  un- 
reasonable, or  wholly  unrelated  to  the  competency  of  the  state  to  deter- 
mine its  educational  function,  it  is  not  violative  of  due  process  or  of  the 
protection  against  cruel  and  unusual  punishment.  Ware  v.  Estes,  328 
F.  Supp.  657  (N.D.  Tex.  1971),  affd  mem.,  458  F.2d  1360  (5th  Cir. 
1972) ,  cert,  denied,  409  U.S.  1027  (1972) . 

At  common  law  the  teacher  had  the  right  to  administer  corporal 
punishment  based  on  the  doctrine  of  in  loco  parentis5  which  defined 
the  teacher's  authority  as  a  partial  delegation  of  parental  authority.6 
The  rationale  behind  this  doctrine  is  that  in  school  discipline  the  teacher 

iThe  plaintiffs  in  the  instant  case  were  two  minors  represented  by  their  fathers. 
Plaintiff  Oliver  was  knocked  unconscious  by  an  assistant  principal  after  supposedly 
directing  an  obscene  remark  at  him. 

2The  class  action,  brought  pursuant  to  Fed.  R.  Civ.  P.  23  (b) ,  was  on  behalf  of  all 
parents  and  students  of  the  Dallas  Independent  School  District  who  were  opposed  to 
corporal  punishment  as  a  method  of  discipline. 

3For  the  purposes  of  this  note,  corporal  punishment  is  defined  as  any  kind  of 
physical  punishment  inflicted  on  the  body  of  a  student  by  school  officials.  See 
Black's  Law  Dictionary  408   (Rev.  4th  ed.  1968) . 

^The  school  district  is  authorized  to  use  corporal  punishment  by  a  Texas  statute 
which  immunizes  teachers  from  assault  and  battery  charges  in  the  exercise  of  mod- 
erate restraint  given  by  law  to  "the  teacher  over  the  scholar"  as  well  as  to  "the 
parent  over  the  child."  Tex.  Penal  Code  Ann.  art.  1142   (1961) . 

Principals  and  assistant  principals  have  authority  to  administer  corporal  punish- 
ment without  parental  consent  although  teachers  may  inflict  such  punishment  only 
in  the  presence  of  another  adult  and  only  after  receiving  written  permission  from 
the  child's  parent.  Ware  v.  Estes,  328  F.  Supp.  657,  659    (N.D.  Tex.  1971) . 

sBlackstone  wrote  that  a  parent  could  delegate  his  parental  authority  to  the 
child's  tutor  or  schoolmaster  who  stood  in  loco  parentis  (in  the  place  of  the  parent) 
in  order  to  discipline  the  child.  See  1  W.  Jones,  Blackstone  648  (1915) .  Although 
Blackstone  wrote  concerning  the  one  to  one  relationship  between  a  tutor  and  his 
pupil,  the  common  law  later  incorporated  this  doctrine  in  establishing  the  modern 
public  school  teacher's  privilege  to  exercise  corporal  punishment.  See  note  6  infra. 

ejohn  B.  Stetson  Univ.  v.  Hunt,  88  Fla.  510,  102  So.  637  (1924)  ;  Richardson  v. 
Braham,  125  Neb.  142,  249  N.W.  557  (1933);  Marlar  v.  Bill,  181  Tenn.  100,  178 
S.W.2d  634  (1944) ;  Prendergast  v.  Masterson,  196  S.W.  246  (Tex.  Civ.  App.  1971) ; 
Clearly  v.  Booth  [1893]  1  Q.B.  465. 


1973]  RECENT  DECISIONS  551 

stands  in  the  place  of  the  parent  and  has  the  right  to  use  reasonable 
physical  punishment  to  obtain  the  child's  obedience.7  A  more  recent 
development  of  the  law  holds  that  the  duty  to  maintain  classroom 
discipline  is  necessary  to  the  educational  process  and  that  the  teacher  has 
authority,  independent  of  parental  authority,  to  punish  in  all  situations 
directly  affecting  school  order.8  According  to  tins  principle  the  school 
board  operates  under  a  legislative  delegation  of  authority.9  Both  lines 
of  development  demonstrate  that  the  validity  of  school  board  regulatory 
power  is  based  on  its  function  of  educating  pupils  in  its  charge.10  Until 
recently  there  has  been  judicial  deference  to  such  regulation  based  on  a 
faith  in  the  quality  of  American  education.11  Thus,  school  board  regu- 
lations have  been  consistently  upheld  on  the  grounds  that  they  were  not 
"clearly  arbitrary  and  unreasonable."12  The  courts,  however,  have  never 
explored  whether  the  rules  performed  a  proper  educational  function.13 

A  third  line  of  development  in  this  area  of  the  law  is  based  on  con- 
stitutional grounds  which  balance  the  legality  of  school  board  rules 
against  the  student's  rights  under  the  first  and  14th  amendments.14 
The  new  standard  is  designed  to  insure  that  students  will  be  accorded 
due  process  rights.15  The  due  process  standard  first  appeared  in  the  area 
of  school  law  in  1945  in  West  Virginia  State  Board  of  Education  v. 
Barneiie,1*  which  held  that  freedom  of  speech  demands  tliat  students  be 
accorded  the  right  to  refrain  from  saluting  the  flag  as  a  part  of  a  re- 
quired school  ceremony.17  The  courts  later  applied  this  standard  to 
school  dress  codes  in  determining  whether  dress  regulations  violated  the 
students'  right  to  due  process.1*   in  Tinker  v.  Des  Moines  Independent 

?5  Washburn  L.J.  75,  77  (1965)  .  For  an  exhaustive  treatment  of  the  in  loco  pat- 
entis  doctrine  see  Goldstein,  The  Scope  and  Sources  of  School  Board  Authority  to 
Regulate  Student  Conduct  and  Status:  A  Non  Constitutional  Analysis,  117  U.  Pa. 
L.  Rev.  373,  377-84  (1969)  . 

815  Hastings  L.j.  600,  601  (1964) ;  see,  e.g.,  Cray  v.  Howard-Winneshiek  Commu- 
nity School  Dist.,  260  Iowa  465,  150  N.W.2d  84  (1967) ;  Independent  School  Dist.  v. 
Mattheis,  275  Minn.  383,  147  N.W.2d  374   (1966) . 

^Goldstein,  School  Board  Authority,  supra  note  7,  at  384. 

ioid. 

nGoldstein,  Reflections  On  Developing  Trends  In  The  Law  Of  Student  Rights, 
118  U.  Pa.  L.  Rev.  612,  613   (1970). 

i2Board  of  Directors  v.  Green,  259  Iowa  1260,  1267,  147  N.W.2d  854,  858  (1967) ; 
see  State  ex  ret.  Thompson  v.  Marion  County  Bd.  of  Educ,  202  Tenn.  29,  34,  302 
S.W.2d  57,  59  (1957)  ;  McLean  Indep.  School  Dist.  v.  Andrews,  333  S.W .2d  886,  888- 
89    (Tex.  Civ.  App.  1960). 

isGoldstein,  Developing  Trends,  supra  note  11,  at  613. 

i4Hudgins,  The  Discipline  of  Secondary  School  Students  and  Procedural  Due 
Process:  A  Standard,  7  Wake  Forest  L.  Rev.  32,  33   (1970) . 

is/d.  at  46;  see  22  Baylor  L.  Rev.  554,  558    (1970). 

16319  U.S.  624    (1945)  . 

ifAngerman,  Constitutional  Defenses  to  a  School  Discipline  Case,  17  Prac.  Law.  45, 
48    (1971). 

isRichards  v.  Thurston,  424  F.2d  1281  (1st  Cir.  1970) ;  Breen  v.  Kahl,  296  F. 
Supp.  702,  706  (W.D.  Wis.  1969) ,  aff'd,  419  F.2d  1034  (7th  Cir.  1969) ;  see  Angerman, 
supra  note  17,  at  49;  22  Baylor  L.  Rev.  554,  558   (1970) . 


552  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Community  School  District,19  the  Court  recognized  a  student's  right  to 
wear  black  arm  bands  to  publicize  his  objection  to  the  Vietnam  war  and 
stated  that  one's  constitutional  rights  do  not  stop  at  the  school  house 
gate.20  This  expansion  of  rights,  however,  has  not  yet  carried  over  to  the 
area  of  corporal  punishment.21  Courts  have  refused  to  hear  corporal 
punishment  cases  unless  the  victim  of  the  punishment  can  show  that  the 
school  board  has  acted  maliciously,  in  bad  faith,  arbitrarily,  or  unreason- 
ably in  prescribing  the  punishment.22  In  making  its  decision  the  Court 
will  honor  any  statute  authorizing  corporal  punishment  unless  the 
punished  student  can  show  that  the  statute  bears  no  reasonable  relation 
to  the  educational  function  of  the  state.23  Although  some  states  are  gov- 
erned by  statute,  the  majority,  including  Mississippi,24  are  guided  by 
common  law.25  If  state  law  is  silent,  the  courts  will  honor  the  common 
law  right  of  the  teacher  to  chastise  his  pupils  as  long  as  the  punishment 
is  reasonable.26 

In  the  instant  decision,  the  court  noted  that  under  the  doctrine  of 
Meyer  v.  Nebraska,27  the  state  cannot  unreasonably  interfere  with  the 
liberty  of  parents  to  direct  the  education  of  their  children.  The  court 
further  noted,  however,  that  under  the  rule  of  Prince  v.  Massachusetts28 
these  parental  rights  are  not  beyond  limitation.  Thus,  relying  on  Pierce 
v.  Society  of  Sisters29  the  court  found  that  passing  judgment  on  the 
merits  of  corporal  punishment  as  a  means  of  discipline  was  outside  its 
jurisdiction  and  held  that  in  order  for  a  deprivation  of  due  process  to 
occur,  the  policy  of  the  school  district  must  bear  no  reasonable  relation 

19393  U.S.  503   (1969)  . 

md.  at  506. 

2iSiras  v.  Board  of  Educ,  329  F.  Supp.  678  (D.N.M.  1971)  ;  see  50  N.C.L.  Rev. 
911    (1972). 

22Suits  v.  Glover,  260  Ala.  449,  71  So.  2d  49  (1954) ;  Calway  v.  Williamson,  130 
Conn.  575,  36  A.2d  377  (1944);  Drake  v.  Thomas,  310  111.  App.  57,  33  N.E.2d  889 
(1941) ;  Haycraft  v.  Grigsby,  94  Mo.  App.  74,  67  S.W.  965  (1902)  ;  see  5  Washburn 
L.J.  75,  88   (1965)  . 

23Pierce  v.  Society  of  Sisters,  268  U.S.  510,  535  (1924)  ;  see  Goldstein,  Developing 
Trends,  supra  note  11,  at  612-13. 

24The  Mississippi  Code  is  not  explicit  in  its  treatment  of  the  subject.  The  statute 
provides  that  one  of  the  teacher's  duties  is  to  maintain  order  in  school,  but  it  is 
silent  as  to  the  method  of  performing  such  duty.  Miss.  Code  Ann.  §  6282-24  (Supp. 
1972) . 

255  Washburn  L.J.  75,  88  (1965)  .  It  should  be  noted,  however,  that  corporal 
punishment  has  been  banned  in  Massachusetts  (Mass.  Gen.  Laws  Ann.  ch.  71,  §  37G 
(Supp.  1973)    and  New  Jersey    (N.J.  Stat.  Ann.  §  18A:6-1    (1968)  ) . 

26Cases  cited  note  22  supra;  see  50  N.C.L.  Rev.  911    (1972) . 

27262  U.S.  390  (1922)  (state  law  forbidding  the  teaching  of  any  modern  lan- 
guage other  than  English  in  public  schools  violates  14th  amendment) . 

28321  U.S.  158  (1943)  (state  statute  prohibiting  minor  accompanied  by  guardian 
from  distributing  religious  literature  on  streets  is  not  violative  of  14th  amendment)  . 

29268  U.S.  510  (1925)  (compulsory  education  act  held  to  violate  due  process 
rights  in  depriving  parents'  right  to  send  children  to  private  schools  possessing  state 
accredited   curriculum) . 


1973]  RECENT  DECISIONS  553 

to  some  purpose  within  the  competency  of  the  state  in  its  educational 
function.  The  court  further  found  that  where  school  policy  is  based  on 
a  state  statute  which  authorizes  teachers  to  inflict  moderate  corporal 
punishment  and  which  immunizes  them  from  assault  and  battery  charges 
in  the  moderate  use  of  such  punishment,  the  school  policy  outweighs  any 
claims  based  on  parental  rights.  The  court  concluded  that  such  author- 
ized corporal  punishment  does  not  violate  the  eighth  amendment's  pro- 
tection against  cruel  and  unusual  punishment. 

By  refusing  to  consider  the  decision  in  the  instant  case,  the  Supreme 
Court  insures  that  corporal  punishment  will  remain  a  fixture  in  thou- 
sands of  American  classrooms.  Although  the  Court  has  placed  a  more 
substantial  burden  of  justification  upon  the  state  in  actions  involving 
first  amendment  rights,30  it  has  upheld  corporal  punishment  as  a  reason- 
able means  of  school  discipline  and  left  the  burden  upon  the  student  to 
show  unreasonableness.31  Once  prevalent  as  a  generally  accepted  means 
of  controlling  behavior,  corporal  punishment  is  officially  sanctioned  to- 
day only  against  children.32  It  is  no  longer  authorized  against  sailors, 
apprentices,  domestic  servants,  or  convicts,33  and  the  separate  treatment 
accorded  students  has  been  criticized  for  some  time.34  In  1853  the  In- 
diana Supreme  Court  declared: 

The  husband  can  no  longer  moderately  chastise  his  wife;  nor 
.  .  .  the  master  his  servant  or  apprentice.  Even  the  degrading 
cruelties  of  the  naval  service  have  been  arrested.  Why  the  per- 
son of  the  school  boy  .  .  .  should  be  less  sacred  in  the  eye  of 
the  law  is  not  easily  explained.35 

The  Indiana  Court  predicted  that  in  time  public  opinion  would  lead  to 
the  abolition  of  corporal  punishment  in  schools,36  but  the  prediction  has 
not  come  true.  A  1970  Gallup  poll  reported  that  62  percent  of  parents 
questioned  believed  in  the  reasonable  use  of  corporal  punishment  in 
schools,37  and  a  1969  National  Education  Association  poll  found  that 
65  percent  of  elementary  teachers  favored  its  "judicious"  use.38  As  evi- 
denced by  the  instant  case,  courts  generally  are  reluctant  to  involve 
themselves  innovatively  in  questions  of  policy,  although  there  are  excep- 
tions.39  In  contrast  to  public  opinion,  experts  in  the  field  of  education 

soTinker  v.  Des  Moines  Indep.  School  Disc,  393  U.S.  503  (1969)  (right  to  wear 
black  arm  bands  in  war  protest)  ;  see  6  Harv.  Civ.  Rights  -  Civ.  Lib.  L.  Rev.  583, 
590   (1971) ;  cf.  Richards  v.  Thurston,  424  F.2d  1281    (1970)    (right  to  wear  long  hair)  . 

siCases  cited  note  22  supra. 

326  Harv.  Civ.  Rights  -  Civ.  Lib.  L.  Rev.  583,  593  (1971)  ;  see  Jackson  v.  Bish- 
op, 404  F.2d  571    (8th  Cir.  1968)  . 

ssjackson  v.  Bishop,  404  F.2d  571,  580-81  (8th  Cir.  1968)  (use  of  strap  in 
Arkansas  state  penitentiary  violates  eighth  amendment)  . 

z*See  6  Harv.  Civ.  Rights  -  Civ.  Lib.  L.  Rev.  583,  588    (1971)  . 

35Cooper  v.  Mcjunkin,  4  Ind.  290,  292-93    (1853)  . 

36/d.  at  292-93. 

"Time,  June  12,  1972,  at  37. 

3848  N.E.A.  Research  Bull.  48,  49   (1970) . 

39See  Wellington,  Corporal  Punishment  in  Schools,  1972  Jurid,  Rev.   124. 


554  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

and  child  psychology  have  adopted  the  view  that  corporal  punishment 
is  a  counterproductive  means  of  achieving  order  in  schools.40  B.  F. 
Skinner,  a  widely  recognized  authority  on  child  psychology,  asserts  that 
corporal  punishment  has  many  unfortunate  by-products  which  may  lead 
students  to  attack  teachers,  become  drop-outs,  vandalize  school  property, 
and  when  they  become  voters,  refuse  to  support  education.41  A  National 
Education  Association  task  force,  while  recognizing  the  enormous  disci- 
plinary problems  that  teachers  face,  has  called  for  a  prompt  end  to  all 
corporal  punishment.42  The  task  force  suggested  that  teachers  be  coached 
in  better  alternatives  and  said,  "  '[t]he  weight  of  fact  and  reasoning  [is] 
against  the  infliction  of  physical  pain.'  "43  An  English  study  found  that 
a  deterioration  of  behavior  and  an  increase  in  delinquency  are  side  effects 
of  corporal  punishment.44  A  most  serious  danger  is  that  adults  who  in- 
flict physical  pain  provide  young  misbehavers  with  models  of  violence 
which  undoubtedly  contribute  to  violent  tendencies  in  later  life.45 

The  frequency  or  severity  of  the  punishment  cannot  be  controlled 
by  defining  permissible  punishment  as  that  which  is  "reasonable."  In 
Jackson  v.  Bis  hop, 46  Judge  Blackmun  noted  that  such  regulations  are 
easily  circumvented  and  that  there  is  a  natural  difficulty  in  enforcing 
the  limits  of  the  power  to  punish.47  Not  only  is  the  practice  inherently 
prone  to  abuse,48  but  there  is  sufficient  evidence  of  gross  abuse49  to 
offset  any  positive  effects  from  its  "judicious"  use.  If  a  student  is  dis- 
rupting the  classroom  or  endangering  others,  reasonable  force  to  remove 
him  is  justified  emergency  action.  Deliberately  inflicting  physical  pain 
is  not. 

When  school  enrollments  were  small  and  teachers  could  build  per- 
sonal relationships,  the  in  loco  parentis  doctrine  was  feasible.  But  as  a 
result  of  the  phenomenal  growth  in  school  enrollments,  some  schools 
have  exceptionally  bad  communication  channels  and  broad  spans  of 
student  control.50  This  bureaucratic  environment  makes  the  in  loco 
parentis  doctrine  inapplicable  to  many  of  today's  modern  school  systems. 
Corporal  punishment  can  be  safely  used  only  when  the  relationship 
between  the  teacher  and  student  has  been  carefully  constructed  over  a 

*oSee,  e.g.,  G.  Blackham  &  A.  Silberman,  Modification  of  Child  Behavior  47- 
49  (1971) ;  Nash,  Corporal  Punishment  In  An  Age  of  Violence,  13  Educational  The- 
ory 295,  302   (1963) . 

4iB.  Skinner,  The  Technology  of  Teaching,  95-103  (1968) ;  B.  Skinner,  Science 
and  Human  Behavior  182-93    (1953). 

42Newsweek,  December  4,  1972,  at  127. 

43/d. 

44Nash,  supra  note  40,  at  301. 

45Am.  Civ.  Lib.  U.,  Corporal  Punishment  in  the  Public  Schools  17    (1972) . 

46404  F.2d  571    (8th  Cir.  1968) . 

47/d.  at  579. 

48Cooper  v.  Mcjunkin,  4  Ind.  290,  292    (1853) . 

49Ware  v.  Estes,  328  F.  Supp.  657,  658  (N.D.  Tex.  1971) ;  see  Newsweek,  May  17, 
1971,  at  99. 

soLadd,  Allegedly  Disruptive  Student  Behavior  and  the  Legal  Authority  of  Public 
School  Officials,  19  J.  Pub.  L.  209,  220  (1970) . 


1973]  RECENT  DECISIONS  555 

long  period  and  rests  upon  mutual  respect  and  genuine  affection.51 
There  are  not  many  cases  in  modern  public  schools  where  it  is  used 
under  such  conditions.  The  probability  that  many  children  will  suffer 
severely  and  unjustly  warrants  the  abolition  of  corporal  punishment. 

It  is  noteworthy  that  the  instant  court  said  that  defendant  Estes 
testified  at  the  trial  that  the  Dallas  School  Policy  reflects  the  philosophy 
of  Skinner,  i.e.  in  some  cases  corporal  punishment  will  be  helpful.  Con- 
trary to  the  court's  statement,  however,  Skinner  writes,  "At  no  time  have 
I  ever  recommended  corporal  punishment  to  anyone.  I  have  never  said 
it  would  be  helpful."52  The  court's  use  of  this  false,  hearsay  testimony 
is  surprising  and  not  easily  explained. 

With  an  understanding  of  the  harmful  effects  of  corporal  punish- 
ment53 and  an  appreciation  for  the  recently  recognized  constitutional 
status  of  students,54  the  instant  court  should  have  found  the  use  of 
corporal  punishment  to  be  violative  of  due  process  and  the  protection 
against  cruel  and  unusual  punishment.  At  the  minimum  the  court  should 
have  redefined  the  limits  of  reasonable  corporal  punishment  and  should 
have  established  guidelines  assuring  that  the  child's  due  process  rights 
will  be  safeguarded.  It  is  regrettable  that  the  Supreme  Court  refused  to 
consider  the  grave  constitutional  issues  of  this  case.  If  petitioned  to  re- 
view the  question  again,  the  Court  must  find  the  use  of  corporal  punish- 
ment to  be  unlawful  if  justice  is  to  be  accorded  to  thousands  of  American 
school  children. 

William  L.  Youngblood 

siNash,  supra  note  40,  at  305. 

ssLetter  from  B.  F.  Skinner  to  William  L.  Youngblood,  Feb.  12,  1973. 

s^See  notes  40-46  supra. 

s*See  note  30  supra. 


556  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Constitutional  Law  —  Default  Imprisonment  Does  Not  Violate  the 
Equal  Protection  Clause  of  the  14th  Amendment 

The  appellant,  Joe  W.  McKinney,  was  convicted  and  fined  $100 
for  the  possession  of  beer.1  As  a  result  of  McKinney's  inability  to 
pay  the  fine,  the  Circuit  Court  of  Chickasaw  County,  Mississippi,  sen- 
tenced him  to  a  jail  term  which  was  sufficient  to  discharge  the  fine.2 
The  appellant  unsuccessfully  moved  for  release  on  the  grounds  that  in- 
carceration for  nonpayment  of  the  fine  due  to  his  indigence3  would 
violate  his  rights  under  both  the  state  and  federal  constitutions.  On  ap- 
peal to  the  Mississippi  Supreme  Court,  held,  affirmed.  Imprisonment 
for  nonpayment  of  a  fine  is  permissible  so  long  as  the  imprisonment  does 
not  exceed  the  maximum  jail  term  provided  by  the  statute.  McKinney 
v.  State,  260  So.2d  444   (Miss.  1972)  . 

Traditionally,  the  common  law  practice  of  imprisoning  a  person  to 
insure  payment  of  a  fine  has  been  upheld  by  American  courts  as  a  valid 
mode  of  enforcing  a  sentence.4  The  rationale  behind  this  practice  was 
shaken  somewhat  in  Griffin  v.  Illinois5  where  the  Supreme  Court  held 
that  a  state  statute,0  which  denied  appellate  review  to  an  indigent  who 
could  not  pay  for  a  required  transcript,  violated  the  due  process  and 
equal  protection  clauses  of  the  14th  amendment.7  The  Griffin  rationale 
was  followed  in  several  subsequent  cases  which  attacked  the  imprison- 
ment of  indigent  defendants  for  nonpayment  of  fines.8  The  Supreme 
Court  finally  considered  the  constitutional  aspects  of  imprisonment  of 
an  indigent  who  is  unable  to  pay  his  fine  in  the  landmark  decision  of 
Williams  v.  Illinois?  In   Williams,  the  accused  was  convicted  of  petty 

iMiss.  Code  Ann.  §  10208  (b)  (Supp.  1972)  provides  that  upon  conviction  of 
illegal  possession  of  beer  or  wine  one  may  be  imprisoned  for  not  more  than  90  days 
and/ or  fined  not  more  than  $500. 

2Miss.  Code  Ann.  §  7899  (1956)  .  Under  Miss.  Code  Ann.  §  7906  (1956) ,  each  con- 
vict receives  a  $3  credit  on  his  fine.  See  Comment,  Installment  Payments:  A  Solu- 
tion to  the  Problem  of  Fining  Indigents,  24  U.  Fla.  L.  Rev.  173  n.56    (1971)  . 

sThe  evidence  adduced  at  the  hearing  on  the  appellant's  motion  showed  that  he 
had  no  money  or  property,  that  at  a  time  before  his  arrest  he  earned  $57  a 
week  but  that  because  of  high  blood  pressure  he  could  no  longer  work,  and  that 
while  his  appeal  to  the  circuit  court  was  pending,  he  earned  $10  a  week 
sweeping  floors.  Statement  of  the  case  for  Appellant  at  1,  2;  McKinney  v.  State,  260 
So.  2d  444   (Miss.  1972) . 

4  Annot.,  31  A.L.R.3d  926,  928  (1970) ;  Note,  Fines,  Imprisonment,  and  the  Poor: 
"Thirty  Dollars  or  Thirty  Days,"  57  Calif.  L.  Rev.  778,  779  (1969) ;  Comment,  In- 
stallment Payments,  supra  note  2,  at  170  n.28. 

5351  U.S.  12   (1956). 

6Ill.  Ann.  Stat.  ch.  38,  §  1-7  (k)     (1972)  . 

7351  U.S.  at  19. 

sNote,  Imprisonment  of  Indigent  for  Non-payment  of  Fine  Held  Violation  of 
Equal  Protection,  40  Fordham  L.  Rev.  159,  160  (1971)  .  A  collection  of  cases  dealing 
with  the  effect  of  a  defendant's  indigency  on  the  validity  of  imprisonment  as  an 
alternative  to  payment  of  a  fine  appears  at  Annot.,  31  A.L.R.3d  926    (1970)  . 

9399  U.S.  235  (1970)  .  Prior  to  Williams,  default  imprisonment  had  been  con- 
sidered by  several  state  courts  resulting  in  divergent  decisions.  Annot.,  31   A.L.R.3d 


1973]  RECENT  DECISIONS  557 

theft  and  was  given  the  maximum  sentence  of  1  year  in  jail  and  a 
$500  fine.  The  sentence  provided  that  if  the  accused  defaulted  in 
payment  of  the  fine,  he  would  remain  incarcerated  until  his  fine  had 
been  worked  off  at  the  rate  of  $5  a  day,  as  provided  by  statute.10 
The  Court,  speaking  through  Chief  Justice  Burger,  concluded  that  im- 
prisoning an  indigent  for  a  term  exceeding  the  statutory  maximum  for 
involuntary  nonpayment  violated  the  equal  protection  clause  of  the  14th 
amendment.11  Justice  White,12  concurring  in  a  companion  case,  Morris 
v.  Schoonfield13  went  a  step  further: 

[t]he  same  constitutional  defect  condemned  in  Williams  also 
inheres  in  jailing  an  indigent  for  failure  to  make  immediate  pay- 
ment of  any  fine,  whether  or  not  the  fine  is  accompanied  by  a 
jail  term  and  whether  or  not  the  jail  term  of  the  indigent  ex- 
tends beyond  the  maximum  term  that  may  be  imposed  on  a 
person  willing  and  able  to  pay  a  fine.14 

Later  in  Tate  v.  Short15  the  Court  expressly  adopted  Justice  White's 
language  in  Morris,  and  held  that  where  a  traffic  court  had  no  jurisdic- 
tion to  impose  a  prison  sentence  for  nonpayment  of  a  fine,  any  imprison- 
ment exceeded  the  statutory  authority  and  was,  therefore,  a  violation  of 
the  equal  protection  clause  of  the  14th  amendment.16 

The  Mississippi  Supreme  Court  first  addressed  itself  to  default  im- 
prisonment of  an  indigent  in  State  v.  Hampton,17  holding  that  such 
incarceration  did  not  constitute  either  cruel  and  unusual  punishment 
nor  imprisonment  for  nonpayment  of  a  debt.  Arguments  that  such  a 
practice  violated  the  equal  protection  and  due  process  clauses  of  the 
14th  amendment  were  expressly  rejected  in  Mississippi  in  the  subsequent 


926,  931  (1970)  ;  Note,  Fines,  Imprisonment,  and  the  Poor,  supra  note  4,  at  795 
n.126,  796  n.127.  Constitutional  arguments  attacking  this  type  of  imprisonment  have 
been  based  on:  (1)  equal  protection  and  due  process;  (2)  cruel  and  unusual 
punishment;    (3)    excessive  fines;  and    (4)    imprisonment  for  debt.  Id.  at  796,  807. 

ioIll.  Ann.  Stat.  ch.  38,  §  1-7  (k)  (1972)  .  The  federal  government  and  every 
state  except  Delaware  have  statuatory  authorization  for  default  imprisonment.  See 
Williams  v.  Illinois,  399  U.S.  235,  239,  246-54    (1970)  . 

11399  U.S.  235,  243   (1970)  . 

i2Mr.  Justice  White  was  joined  in  his  concurring  opinion  by  Justices  Douglas, 
Brennan,  and  Marshall.  See  also  Justice  Harlan's  concurrence  in  Williams  v.  Illinois, 
399  U.S.  235,  259    (1970)  . 

!3399  U.S.  508  (1970)  .  In  Morris  several  indigents  were  convicted  of  and  fined 
for  minor  offenses  and  subsequently  incarcerated  for  nonpayment.  Some  of  the 
offenses   were    punishable    only    by    fine. 

i^/d.  at  508. 

15401  U.S.  395    (1971) ,  noted  in  42  Miss.  L.J.  265    (1971) . 

16401  U.S.  at  399. 

17209  So.  2d  899  (Miss.  1968)  .  Hampton  was  an  indigent  defendant  who  was 
convicted  of  several  misdemeanors.  He  was  sentenced  to  9  months  in  jail  and  an 
■f 800  fine.  He  served  the  9  months  but  was  unable  to  pay  the  fine. 


558  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

case  of  Wade  v.  Carsley.18  On  appeal  to  the  Fifth  Circuit,  Wade  was 
dismissed  as  moot;  but  the  companion  case,19  involving  an  indigent  de- 
fendant who  had  received  a  similar  maximum  sentence,  was  reversed  on 
the  basis  of  Williams  as  being  a  violation  of  the  equal  protection  and 
due  process  clauses.20  The  court  said,  however,  that  the  state  was  not 
precluded  from  finding  an  alternative  method  of  collecting  an  unpaid 
fine  from  an  indigent.21 

The  Mississippi  Supreme  Court,  in  an  opinion  devoid  of  facts,  dis- 
tinguished the  instant  case  from  Tate  v.  Short22  and  Williams  v.  Illinois231 
both  factually  and  as  to  the  punishment  involved.  In  distinguishing 
Tate,  the  court  reasoned  that  since  the  statute  in  Tate24  provided  only 
for  a  fine,  any  imprisonment  would  be  invalid.  The  court  held  that  in 
the  instant  case  the  applicable  statute25  provides  for  both  a  fine  and 
imprisonment,  and  therefore  imprisonment  could  be  imposed.  In  dis- 
tinguishing Williams,  the  court  reasoned  that  even  though  the  statutes 
involved  in  both  Williams26  and  the  instant  case  were"and/or"  statutes, 
providing  for  a  fine  and/or  jail  term,  the  court  in  Williams  exceeded 
the  statutory  maximum  time  in  its  sentence.  The  court  held  that  in  the 
instant  case  the  additional  imprisonment  would  not  exceed  the  statutory 
maximum,  and  that  the  sentence  should  be  affirmed.27 

In  the  present  case  it  appears  that  the  Mississippi  Supreme  Court 
completely  ignored  Justice  White's  language  in  Morris  v.  Schoonfield28 
which  was  expressly  adopted  in  Tate  v.  Short.29  This  language  suggested 
that  the  United  States  Supreme  Court  would  find  default  imprisonment 

18221  So.  2d  725  (Miss.  1969) .  The  defendant  was  convicted  of  disturbance  of 
the  peace  and  sentenced  to  6  months  in  jail  and  a  $500  fine.  Upon  nonpayment 
she  was  sentenced  to  an  additional  term  to  work  off  the  fine  at  the  rate  of  $3  per  day. 

It  is  interesting  that  the  court  relied  on  People  v.  Illinois,  41  111.  2d  511,  244 
N.E.2d  19*7  (1969) ,  which  was  subsequently  reversed  in  Williams  v.  Illinois,  399 
U.S.  586    (1970) . 

isWade  v.  Carsley,  433  F.2d  68  (5th  Cir.  1970) .  The  Wade  case  was  joined  with 
a  case  styled  Thames  v.  Thomas.  The  question  before  the  court  of  appeals  was 
whether  the  state  had  violated  the  Constitution  by  imposing  imprisonment  upon  an 
indigent  for  inability  to  pay  a  validly  imposed  fine  when  additional  imprisonment 
would  extend  the  total  incarceration  beyond  the  maximum  provided  by  state  law. 
Thames  was  sentenced  to  the  maximum  jail  term  of  6  months  and  the  maximum  fine 
of  $500.  Upon  default  he  was  sentenced  to  serve  an  additional  166-2/3  days  to 
work  off  the  fine. 

20433  F.2d  at  69. 

21/d.  69-70.  Reference  was  made  to  n.21  of  the  Williams  case. 

224OI  U.S.  395    (1971). 

23399  U.S.  235   (1970) . 

24For  a  discussion  of  the  statute,  see  42  Miss.  L.J.  265    (1971) . 

25Miss.  Code  Ann.  §  10208   (Supp.  1972) . 

26Ill.  Ann.  Stat.  ch.  38,  §  1-7   (1972) . 

27At  the  statutory  rate  of  $3  per  day,  McKinney  could  work  off  his  fine  in 
33-1/3  days,  but  a  few  extra  days  would  be  required  to  pay  court  costs. 

28399  U.S.  508   (1970) . 

29401  U.S.  395,  398   (1971) . 


1973]  RECENT  DECISIONS  559 

to  be  a  denial  of  equal  protection  even  in  cases  where  the  imprisonment 
is  for  a  term  less  than  the  statutory  maximum.30  McKinney's  imprison- 
ment is  admittedly  less  than  the  statutory  maximum  of  2  years,  but  the 
language  of  the  Court  in  Tate  appears  to  prohibit  any  default  imprison- 
ment. The  only  possible  reason  the  lower  court  could  have  had  in  im- 
posing default  imprisonment  was  to  insure  collection  of  the  fine.  The 
court  had  already  determined  that  there  was  no  reason  to  imprison  the 
appellant  when  it  chose  merely  to  fine  him  rather  than  to  sentence  him 
to  jail.  The  question  that  arises  is  whether  a  judge  who  has  determined 
that  imprisonment  will  not  serve  any  public  or  compelling  governmental 
interest  should  be  allowed  to  impose  punishment  in  the  form  of  incar- 
ceration. Incarceration  subjects  a  convicted  man  to  public  disgrace  and 
degradation  of  character.31  Further,  there  can  be  no  economic  justifica- 
tion for  the  additional  expense  incurred  by  the  state  when  an  offender 
of  a  minor  crime  is  imprisoned.32  Fining,  at  the  very  least,  should  be 
predicated  on  a  fair  and  rational  basis,  if  not  upon  the  offender's  ability 
to  pay.  These  considerations  were  apparently  ignored  in  the  present 
case.33  The  trial  judge  originally  determined  that  society's  interest  did 
not  compel  the  harshness  of  imprisonment  and  sentenced  the  appellant 
to  pay  a  «$  100  fine,  or  one-fifth  of  the  statutory  maximum.  Upon 
default,  the  "work  off"  jail  term  was  imposed,  which  amounted  to  over 
33  days  of  imprisonment  or  over  one-third  of  the  statutory  maximum 
time.34  As  a  result  the  appellant  had  to  serve  a  greater  sentence  than 
was  originally  given,  solely  because  he  did  not  have  the  financial  ability 
to  pay  the  fine.  This  conversion  from  fine  to  imprisonment  is  certainly 
inequitable,  if  not  arbitrary.  The  court's  cryptic,  16-line  opinion  con- 
ceals the  fundamental  inequities  of  a  decision  which  does  violence  to 
the  spirit,  if  not  the  letter,  of  the  law  as  enunciated  in  Tate  and 
Williams. 

It  is  not  here  suggested  that  the  fine  be  simply  forgotten  when  an 
indigent  defendant  cannot  pay.  An  alternative  method  of  collection, 
such  as  an  installment  or  deferred  payment  plan  similar  to  those  adopted 
in  other  states,35  could  and  should  be  initiated  in  Mississippi. 

Walker  W.  (Bill)  Jones 

sosee  Note,  Fining  the  Indigent,  71  Colum.  L.  Rev.  1281,  1302   (1971)  . 
siThe  President's  Commission  on   Law   Enforcement  and  the  Administration 
of  Justice,  The  Task  Force  Report:  The  Courts  15  (1967) . 

32/<J. 

szSee  note  3  supra. 

34Miss.  Code  Ann.  §  10208   (Supp.  1972) . 

zssee,  e.g.,  Cal.  Penal  Code  §  1205  (1970)  (as  applied  to  misdemeanors) ;  Miss. 
Gen.  Laws  Ann.  ch.  279,  §  1A  (1972) ;  Md.  Ann.  Code  art.  38,  §  4  (a)  (2)  (Supp.  1972) ; 
N.Y.  Code  Crim.  Proc.  §  420.10(4)  (1)  (6)  (McKinney  Supp.  1971);  Pa.  Stat.  Ann. 
tit.  19,  §  1052  (1964) ;  Wash.  Rev.  Code  Ann.  §  9.92.070   (1961) . 


560  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Corporate  Taxation  —  Subchapter  S  —  Recharacterized  Equity  Will 
Not  Necessarily  Constitute  a  Second  Class  of  Stock 

Appellee,  a  small  business  corporation  taxed  under  Subchapter  S  of 
the  Internal  Revenue  Code,  contested  the  Commissioner's  asserted  de- 
ficiencies in  its  corporate  income  tax  for  fiscal  years  1962  and  1963. 
The  Commissioner  contended  that  advances  made  to  the  corporation  by 
its  shareholders  constituted  a  second  class  of  stock.  Accordingly,  the 
Commissioner  terminated  the  corporation's  Subchapter  S  status  and  held 
it  liable  for  the  ordinary  corporate  income  tax  on  its  net  earnings.  The 
United  States  District  Court  for  the  Northern  District  of  Mississippi  held 
that  the  shareholder  advances  constituted  contributions  to  capital,  not 
loans.  The  court  said  that  even  though  such  advances  should  be  re- 
characterized as  equity,  they  would  not  result  in  a  second  class  of  stock 
and  loss  of  Subchapter  S  status.  On  appeal  to  the  Fifth  Circuit  Court 
of  Appeals,  held,  affirmed  and  modified.  Contributions  to  capital  of  a 
Subchapter  S  corporation  which  are  recharacterized  as  equity  will  not 
necessarily  become  a  second  class  of  stock,  resulting  in  the  termination  of 
Subchapter  S  status.  Amory  Cotton  Oil  Co.  v.  United  States,  468  F.2d 
1046   (5th  Cir.  1972) . 

Subchapter  S  was  enacted  in  1958  under  sections  1371-1378  of  the 
Internal  Revenue  Code  of  1954.  These  sections  made  it  possible  for 
businessmen  "to  select  the  form  of  business  organization  desired,  without 
the  necessity  of  taking  into  account  major  differences  in  tax  conse- 
quences."1 To  be  taxed  under  Subchapter  S,2  a  corporation  must  be  a 
small  business  corporation  which  does  not:  (1)  have  more  than  10  share- 
holders;3 (2)  have  as  a  shareholder  a  person  (other  than  an  estate)  who 
is  not  an  individual;4  (3)  have  a  nonresident  alien  as  a  shareholder;5 
or  (4)  have  more  than  once  class  of  stock.6  Under  Subchapter  S  the 
corporation  is  not  subject  to  the  corporate  income  tax,  but  instead  its 

iS.  Rep.  No.  1983,  85th  Cong.,  2d  Sess.  87    (1958)  . 

2An  election  can  be  made  only  if  all  persons  who  are  shareholders  in  the 
corporation  consent  to  it.  Once  an  election  is  made,  it  is  effective  for  the  taxable 
year  for  which  it  is  made  and  for  all  succeeding  taxable  years.  Int.  Rev.  Code  of 
1954,  §  1372. 

Hd.,  §  1371(a)  (1),    construed  in  Treas.  Reg.  §   1.1371-1  (d)  (1). 

4Int.  Rev.  Code  of  1954,  §  1371  (a)  (2)  ,  construed  in  Rev.  Rul.  63-226,  1963-2 
Cum  Bull.  341. 

5Int.  Rev.  Code  of  1954,  §  1371  (a)     (3)  . 

This  restriction  reflects  the  fact  that  the  corporate  income  is  exempt  from 
tax  under  Subchapter  S  on  the  assumption  that  it  will  be  subjected  to  the 
graduated  individual  income  tax  rates,  whereas  some  nonresident  aliens  are 
taxed  under  section  871  (a)  (1)    at  the  flat  rate  of  39%. 

B.     BlTTKER     &     J.     EUSTICE,     FEDERAL     TAXATION     OF     CORPORATIONS     AND     SHAREHOLDERS 

%  6.02  at  6-9   (3d  ed.  1971)  . 

6Int.  Rev.  Code  of  1954,  §  1371  (a)  (4)  .  The  election  is  terminated  however,  if 
the  corporation  ceases  to  be  a  "small  business  corporation"  as  defined  by  section 
1371(a).  Id.  §  1372(e)  (2). 


1973]  RECENT  DECISIONS  561 

income  is  "passed  through"  and  taxed  directly  to  its  shareholders.7  The 
shareholders,  therefore,  are  taxed  on  income  which  is  actually  distributed 
to  them  in  the  form  of  dividends  and  on  the  corporation's  undistributed 
taxable  income.8  Under  section  1374  an  electing  corporation  may  also 
"pass  through"  its  net  operating  losses  to  the  shareholders.  This  allows 
each  shareholder  to  carry  a  portion  of  the  corporation's  net  operating 
loss  on  his  individual  return  and  offset  it  against  his  personal  income.9 
Section  1375  provides,  however,  that  the  right  to  make  a  nondividend 
distribution  of  previously  taxed  undistributed  taxable  income  lasts  only 
as  long  as  the  Subchapter  S  election  remains  in  force.10   Treasury  Regu- 

ild.  §  1372(b)  (1)  ,  which  states  in  part:  "with  respect  to  the  taxable  years  of  the 
corporation  for  which  such  election  is  in  effect,  such  corporation  shall  not  be  subject 
to  the  taxes  imposed  by  this  chapter  (other  than  the  tax  imposed  by  section  1378)  . 
.  .  ."  The  exemption  includes  the  corporate  income  tax  of  section  11,  the  ac- 
cumulated earnings  tax  of  Section  531,  and  the  personal  holding  company  tax  of 
section  541.  B.  Bittker  &  J.  Eustice,  supra  note  5,  ^  6.05,  at  6-16. 

8Int.  Rev.  Code  of  1954,  §  1373.  Example:  Corporation  X,  a  newly  formed  enter- 
prise, has  current  earnings  and  profits  and  taxable  income  of  $20,000  in  1972.  The 
corporation  distributes  a  total  of  $12,000  in  the  form  of  actual  dividends  to  its  single 
shareholder  A  during  the  year.  The  remaining  $8,000  is  the  corporation's  undistributed 
taxable  income  for  1972  and  is  taxed  to  A  as  a  dividend.  This  $8,000  on  which  A  has 
been  taxed  but  which  he  hasn't  received,  is  credited  to  his  previously  taxed  income 
account,  and  the  basis  of  his  stock  in  the  corporation  is  increased  by  $8,000.  See  Note, 
Shareholder  Lending  and  Tax  Avoidance  in  Sub-chapter  S  Corporation,  67  Colum. 
L.  Rev  495    (1967) . 

Under  section  1375  (f)  any  distribution  of  undistributed  previously  taxed  income 
made  within  75  days  of  the  close  of  the  previous  taxable  year  is  treated  as  a  dis- 
tribution of  the  corporation's  undistributed  taxable  income  for  the  preceding  year. 
This  allows  the  corporation  a  grace  period  in  which  it  can  review  and  distribute  its 
undistributed  previously  taxed  income  accounts   to  its  shareholders. 

QUnder  section  1374  (d)  (1)  it  is  treated  "as  a  deduction  attributable  to  a  trade 
or  business  carried  on  by  the  shareholder."  Section  1374  accomplishes  one  of  the 
primary  functions  of  Subchapter  S:  it  allows  shareholders  who  anticipate  heavy  losses 
in  the  formative  years  of  a  new  enterprise  to  offset  them  against  personal  income 
where  there  would  be  no  way  of  offsetting  these  losses  at  the  corporate  level. 

Under  section  1376  (b)  the  shareholder's  basis  for  his  stock  is  reduced  by  the  net 
operating  loss  passed  through  to  him.  Once  the  basis  of  his  stock  is  reduced  to  zero, 
section  1376(b)  (2)  provides  that  the  shareholder  may  apply  the  excess  to  reduce 
the  basis  of  any  corporate  indebtedness  held  by  him. 

ioVarious  other  factors  also  come  into  play.  Under  section  1375  (d)  (2)  (B)  (i) 
the  shareholder's  previously  undistributed  taxable  income  is  reduced  by  the  amount 
of  the  corporation's  net  operating  loss  attributed  as  a  deduction  to  the  shareholder. 
If  corporate  losses  are  incurred  before  the  shareholder  withdraws  the  undistributed 
dividend,  the  benefit  of  the  tax-free  distribution  is  lost.  Any  undistributed  dividend 
accrued  is  personal  to  the  shareholder  and  cannot  be  transferred;  any  subsequent 
buyer  or  donee  would  obtain  no  right  to  the  undistributed  previously  taxed  dividend. 
Treas.  Reg.  §  1.1375-4  (e)  (1945).  Similarly,  when  a  shareholder  dies,  his  estate  is 
not  entitled  to  the  undistributed!  previously  taxed  dividends  which  may  have 
accrued. 


562  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

lation  section  1. 137 1-1  (g),  as  originally  promulgated,  provided  that  a  Sub- 
chapter S  corporation  ran  the  risk  of  losing  its  special  status  if  an  in- 
strument purporting  to  be  a  debt  was  actually  stock.11  In  the  1966  case 
of  W.  C.  Gamman,12  the  Tax  Court  interpreted  the  regulation  to  mean 
that  the  "proportionality"  between  the  alleged  debt  and  the  stock  was 
the  exclusive  test  in  determining  whether  more  than  one  class  of  stock 
existed.13  Subsequently,  however,  the  Tax  Court  rejected  this  interpreta- 

It  is,  therefore,  in  the  shareholder's  best  interest  to  withdraw  this  undistributed 
previously  taxed  income  annually.  See  note  9  supra.  However,  under  Treas.  Reg.  § 
1.1375-4  (b),  the  distribution  must  be  of  money;  a  distribution  of  property  will  not 
qualify.  A  distribution  of  this  kind  usually  becomes  feasible  only  if  a  corporation 
can  finance  its  operations  without  retained  earnings.  See  Note,  "Locked-In  Earn- 
ings"—How  Serious  a  Problem  Under  Subchapter  St,  49  Va.  L.  Rev.  1516    (1963) . 

ii Characteristics  of  debt  include:  (1)  an  unconditional  obligation  to  pay  a  prin- 
cipal sum  certain;  (2)  on  or  before  a  fixed  maturity  date  not  unreasonably  far  in 
the  future;  (3)  with  interest  payable  in  all  events  and  not  later  than  maturity; 
(4)  debt  is  not  subordinated  in  priority  to  general  creditors;  and  (5)  the  holder  is 
not  entitled  to  voting  rights.  Conversely,  the  characteristics  of  the  stock  include: 
(1)  an  excessively  far-off  maturity  date,  or  no  maturity  date;  (2)  interest  contingent 
on  earnings  or  discretionary  with  the  directors;  (3)  subordination  of  interest  or 
principal  to  the  claims  of  general  creditors;  (4)  voting  rights  or  the  right  to  par- 
ticipate in  management;  and  (5)  restrictions  on  assignability.  B.  Bittker  &  J.  Eustice, 
supra  note  5,  fl  4.03,  at  4-8. 

As  to  the  corporation  the  most  substantial  reason  for  preferring  debt  to 
equity  is  that  the  corporation  will  obtain  a  deduction  under  section  163  (a)  for 
interest  paid  on  debt,  whereas  dividends  paid  on  stock  or  equity  are  not  deductible. 
The  corporate  tendency  to  prefer  debt  to  equity  is  modified  in  part  by  section  385. 
In  determining  whether  a  debtor-creditor  or  a  corporation-shareholder  relationship 
exists,  one  of  the  factors  which  the  Commissioner  considers  is  the  ratio  of  debt  to 
equity  of  the  corporation.  A  ratio  of  4  to  1  (debt  to  equity)  is  considered  acceptable. 
See  Hrusoff,  Election,  Operation  and  Termination  of  a  Subchapter  S  Corporation, 
11  Vill.  L.  Rev.  1,  10-12   (1965). 

1246  T.C.  1  (1966) .  Pre-Gamman  cases  include:  Henderson  v.  United  States,  245 
F.  Supp.  782  (M.D.  Ala.  1965) ,  in  which  the  district  court  concluded  that  the 
election  had  been  ineffective  because  the  shareholders'  loans  to  the  corporation  were 
actually  contributions  to  capital;  and  Catalina  Homes,  Inc.,  23  CCH  Tax  Ct.  Mem.  1361 
(1964) ,  in  which  the  Tax  Court  found  that  substantial  shareholder  loans  consti- 
tuted a  second  class  of  stock  revoking  the  corporation's  election  under  Subchapter  S. 

isTreas.  Reg.  §  1.1371-1  (g)    provides  in  part: 

Obligations  which  purport   to  represent  debt,  but  which  actually  represent 
equity  capital  will  generally  constitute  a  second  class  of  stock.  However,  if 
such   purported    debt    obligations   are   owned    solely   by    the   owners   of   the 
nominal   stock   of   the   corporation   in   substantially    the   same   proportion   as 
they    own    such    nominal    stock,    such    purported    debt    obligations    will    be 
treated   as  contributions   to  capital  rather  than  a  second  class  of  stock. 
For  additional  cases  concerning  this  regulation,  see  August  F.  Nielsen  Co.,  27  CCH 
Tax  Ct.  Mem.  44   (1968) ;  Milton  T.  Raynor,  50  T.C.  762    (1968) ;  cf.  Portage  Plastics 
Co.   v.   United  States,  301    F.   Supp.   684    (W.D.   Wis.    1969) .   In  Portage,   the   Com- 
mission contended  that  notes  issued   to  non-shareholders  constituted  a  second  class 


1973]  RECENT  DECISIONS  563 

tion  in  the  1970  case  of  James  L.  Stinnett,  Jr.,14  and  held  it  to  be  invalid 
as  applied.  Although  the  court  in  Stinnett  said  that  the  "proportion- 
ality" test  was  inconsistent  with  the  legislative  intent  of  Subchapter  S,  it 
failed  to  articulate  any  substitute  for  the  invalidated  regulation.15  In 
Brennan  v.  O'Donnell16  an  Alabama  district  court  reiterated  the  Tax 
Court's  holding  in  Stinnett  and  concluded  that  the  regulation,  which 
provided  that  disproportionately  held  debt-equity  would  disqualify  a 
corporation  from  Subchapter  S  treatment,  overreached  the  statute  and 
was  invalid.  However,  in  Portage  Plastics  Co.  v.  United  States,17  the 
Seventh  Circuit  Court  of  Appeals  held  Treasury  Regulation  section 
1.1371-1  (g)  to  be  valid.  The  court  found  that  the  holders  of  purported 
debt  obligations  enjoyed  preferential  rights  and  that  these  obligations 
could  be  reclassified  as  equity  and  considered  a  second  class  of  stock.18 

In  the  instant  case,  the  court  adopted  the  reasoning  in  Gamman 
and  Stinnett  by  stating  that  ".  .  .  it  must  take  into  account  that  tax-wise 
the  corporation  [under  Subchapter  S]  is  different  from  a  Subchapter  C 
corporation."19  The  court  stated  that  the  statutory  debt-equity  ratio  is 
a  relevant  consideration  and  should  be  applied  in  the  instant  case.  The 
court  further  reasoned  that  in  determining  whether  a  second  class  of 
stock  existed,  additional  factors  must  be  taken  into  consideration: 
(1)  "the  general  purpose  of  Subchapter  S  is  to  permit  small  businesses 
to  select  a  form  of  organization  without  the  necessity  of  taking  into 
account  major  differences  in  tax  consequences";20  (2)  the  fact  that  the 
statutory  framework  anticipated  that  stockholders  would  make  loans  to 
Subchapter  S  corporations;  and  (3)  that  debt  can  be  used  to  serve  a 
valid  purpose  within  the  structure  of  Subchapter  S.21    The  court  then 

of  stock.  In  refusing  to  extend  the  application  of  the  regulation  to  the  factual 
situation,  the  district  court  reasoned  that 

the  purposes  of  the  one  class  of  stock  requirement,  to  avoid  administrative 

complexities   and   to   limit   the   advantages   of  Subchapter   S   status   to   small 

corporations,   would    not    be    served    by    a    conclusion    that    the    instruments 

in    question    constituted    a    second    class    of    stock    within    the    meaning    of 

section  1371  (a)  (4)  . 
Id.  at  694. 

1454  T.C.  221    (1970)  ,noted  in  50  B.U.L.  Rev.  577   (1970) . 

^Stinnett  has  been  narrowly  construed  to  hold  that  "where  the  instrument  is  a 
simple  installment  note,  without  any  incidents  commonly  attributed  to  stock,  it 
does  not  give  rise  to  more  than  one  class  of  stock  within  the  meaning  of  section 
1371  merely  because  the  debt  creates  disproportionate  rights  among  the  stockholders 
to  the  assets  of  the  corporation."  54  T.C.  at  232. 

16322  F.  Supp.  1069   (N.D.  Ala.  1971)  . 

i"CCH  1973  Stand.  Fed.  Tax  Rep.  f  9261. 

isThe  Seventh  Circuit  Court  of  Appeals,  sitting  en  banc,  later  reversed  the 
decision  upon  rehearing. 

isAmory  Cotton  Oil  Co.  v.  United  States,  468  F.2d  1046,  1051    (1972)  . 

20id.  at  1051. 

21/d.  at  1051-52.  It  can  be  argued  that  the  debt-equity  controversy  is  irrelevant 
under  Subchapter  S.  When  income  is  "passed  through"  to  the  shareholder,  it  is 
treated  as  a  dividend.  Under  Subchapter  S,  the  deduction  which  is  allowed  by  sec- 
tion  163  (a)    to  the  corporation  for  interest  paid  on  debt  is  lost. 


564  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

held  Treasury  Regulation  section  1.1371-1  (g) ,  as  amended,  invalid  both 
facially  and  as  applied  in  the  instant  case.  The  court  concluded  that 
although  the  advances  made  by  the  shareholders  were  contributions  to 
capital,  they  did  not  constitute  a  second  class  of  stock  within  the 
meaning  of  section  1371  (a)  (4) . 

It  is  clear  that  the  court's  decision  in  Amory,  with  its  invalidation 
of  Treasury  Regulation  section  1.1371-1  (g) ,  reflects  further  refutation  of 
the  Commissioner's  second  class  of  stock  argument.22  The  Amory  court 
applied  a  dual  test:  the  first  inquiry  is  whether  the  purported  debt 
should  be  reclassified  as  equity  and  the  second  is  whether  the  reclassified 
equity  is  in  fact  a  second  class  of  stock.  This  dual  test,  although  not 
unique,  appears  to  ease  the  restrictions  of  Subchapter  S  requirements  and 
should  provide  more  certainty  in  their  application.  By  holding  that  a 
second  class  of  stock  is  not  necessarily  created  just  because  a  shareholder 
contributes  additional  equity,  the  court  has  allowed  the  taxpayer  to  be 
more  flexible  when  planning  the  capital  structure  of  a  Subchapter  S 
corporation.  Furthermore,  it  should  now  be  easier  for  small  companies 
to  receive  additional  capital  from  their  shareholders  without  the  termi- 
nation of  their  Subchapter  S  status  and  the  resulting  "lock-in"  of  un- 
distributed, previously  taxed  income.  This  should  prove  particularly 
beneficial  to  the  small,  thinly  capitalized  corporation,  especially  in  its 
formative  years. 

In  light  of  the  instant  decision  the  Seventh  Circuit  Couth  of  Appeals 
sitting  en  banc  recently  reconsidered  and  reversed  its  earlier  ruling  in 
Portage  Plastics  Co.  v.  United  States.23  The  court  concluded  that  ad- 
vances to  a  tax-option  corporation  were  contributions  to  capital  and 
that  this  determination  did  not  require  a  finding  that  a  second  class  of 
stock  existed.  The  concurrence  of  the  Fifth  and  Seventh  Circuits  appears 
to  have  sounded  the  death  knell  for  Regulation  section  1.1371-1  (g)'s 
arbitrary  formula  as  to  what  constitutes  a  second  class  of  stock. 

Marlane  E.  Chill 


22ln  Shores  Realty  Co.  v.  United  States,  468  F.2d  572  (5th  Cir.  1972) ,  which  was 
decided  on  the  same  day  as  Amory,  the  Fifth  Circuit  Court  of  Appeals  concluded 
that  advances  made  by  stockholders  were  bona  fide  indebtednesses,  and,  even  if  they 
were  not  bona  fide  indebtednesses,  they  were  some  form  of  surplus  that  was  not  a 
class  of  stock  so  as  to  disqualify  the  corporation  under  Subchapter  S. 

23CCH  1973  Stand.  Fed.  Tax  Rep.  %  9261. 


1973]  RECENT  DECISIONS  565 

Criminal  Law  —  Bail  —  Capital  Offense  Exception  to  Constitu- 
tional Bail  Guarantee  Unaffected  by  Abolition  of  Death  Penalty 

Appellant,  who  was  held  without  bail  pending  action  by  the  grand 
jury  on  a  charge  of  murder,  sought  release  on  a  writ  of  habeas  corpus. 
The  Mississippi  Constitution  of  1890  guarantees  a  nondiscretionary  right 
to  bail  before  conviction  in  all  except  capital  offenses.1  Appellant  con- 
tended, inter  alia,  that  since  capital  punishment  had  been  abolished  by 
the  Supreme  Court  in  Furman  v.  Georgia,2  capital  offenses  no  longer 
exist  and,  therefore,  all  cases  are  bailable  as  a  matter  of  constitutional 
right.  Appellant's  request  for  bail  was  denied  first  at  the  preliminary 
hearing  by  the  County  Court  of  the  First  Judicial  District  of  Hinds 
County  and  again  by  the  Circuit  Court  of  Hinds  County  in  a  habeas 
corpus  proceeding.  On  appeal  to  the  Mississippi  Supreme  Court,  held, 
denial  of  writ  of  habeas  corpus  affirmed.  The  abolition  of  the  death 
penalty  in  Furman  v.  Georgia3  does  not  invalidate  the  capital  offense 
exception  to  the  right  to  bail,  since  a  capital  offense  is  any  offense  for 
which  the  legislature  has  authorized  the  infliction  of  the  death  penalty, 
even  though  capital  punishment  may  no  longer  be  constitutionally  im- 
posed.  Hudson  v.  McAdory,  268  So.  2d  916    (Miss.  1972). 

Although  concern  with  the  right  of  the  accused  to  pretrial  release 
had  been  a  consistent  theme  in  English  legal  history,4   the  American 

iMiss.  Const,  art.  3,  §  29  provides:  "Excessive  bail  shall  not  be  required,  and  all 
persons  shall,  before  conviction,  be  bailable  by  sufficient  sureties,  except  for  capital 
offenses  when  the  proof  is  evident  or  presumption  great." 

2408  U.S.  238  (1972).  The  full  meaning  of  Furman  v.  Georgia,  together  with  its 
companion  cases,  Jackson  v.  Georgia,  408  U.S.  238  (1972),  and  Branch  v.  Texas,  408 
U.S.  238  (1972),  must  await  clarification  in  later  cases.  The  nine  separate  opinions  in 
the  5-4  decision  covered  more  than  230  pages,  and  no  member  of  the  majority  joined 
in  the  opinion  of  any  other  member  of  the  majority.  The  Court  did  not  specifically 
abolish  capital  punishment  per  se,  but  did  condemn  criminal  provisions  which  allow 
the  jury  to  exercise  discretion  in  choosing  to  impose  either  the  death  penalty  or  some 
lesser   sentence   for   an   offense. 

In  any  event,  the  court  in  the  instant  case  assumes  as  a  matter  of  course  that 
capital  punishment  under  the  Mississippi  homicide  statute  is  now  unenforceable.  This 
view  is  probably  correct,  since  Miss.  Code  Ann.  §  2536  (1956),  provides  for  jury  dis- 
cretion in  affixing  either  the  death  penalty  or  a  sentence  of  life  imprisonment  in  cap- 
ital  cases. 

3408   U.S.   238   (1972). 

**At  early  common  law,  bail  was  largely  a  matter  of  discretion  with  sheriffs,  whose 
motives  for  granting  pretrial  release  might  vary  from  bribery,  Meyer,  Constitutionality 
of  Pretrial  Detention,  60  Geo.  L.J.  1139,  1155  (1972),  to  a  general  refusal  to  care  for 
the  prisoners.  Note,  Bail:  An  Ancient  Practice  Reexamined,  70  Yale  L.J.  966  (1961). 
Abuses  by  sheriffs  led  to  the  first  statutory  regulation  of  bail  practices,  the  Statute  of 
Westminster  I  in  1275,  which  governed  the  bail  activities  of  lower  officials  by  esta- 
blishing a  hierarchy  of  bailable  and  nonbailable  offenses.  Although  the  Statute  left 
higher  courts,  in  particular  the  King's  Bench,  unaffected,  it,  together  with  a  1554 
statute  which  outlined  procedural  matters,  remained  the  basis  of  English  bail  law  for 
over    500    years.    1    J.    Stephens,    History    of    the    Criminal    of    England    234-36 


566  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

colonists  moved  quickly  to  provide  even  more  stringent  safeguards 
against  imprisonment  prior  to  conviction.  Accordingly,  in  1641  Massa- 
chusetts advanced  the  peculiarly  American  idea  of  a  nondiscretionary 
right  to  bail  before  conviction  except  in  the  case  of  capital  crimes.5  In 
1682  Pennsylvania  incorporated  the  guarantee  into  positive  law  by  stat- 
ing, "that  all  prisoners  shall  be  bailable  by  sufficient  sureties,  unless  for 
capital  offences,  where  the  proof  is  evident  or  the  presumption  great. 
.  .  ."6  The  constitutions  of  Pennsylvania7  and  North  Carolina8  in  1776, 
the  Northwest  Territory  Ordinance  of  1787,9  and  the  Judiciary  Act  of 
178910  contained  essentially  the  same  language.  Other  states  copied  the 
Pennsylvania  statute  extensively  throughout  the  next  century  with  little 
modification,11  and  by  1962  38  states  had  substantially  identical 
constitutional  or  statutory  provisions  concerning  bail.12    The  guarantee 

(1883);  Meyer,  supra,  at  1156.  Three  significant  17th  century  documents,  the 
Petition  of  Rights  in  1628,  the  Habeas  Corpus  Act  in  1679,  and  the  Bill  of  Rights  in 
1689,  solidified  the  rights  of  Englishmen  to  pretrial  release  by  respectively  incorporat- 
ing the  guarantees  of  Magna  Carta  upon  pretrial  imprisonment,  bringing  the  higher 
courts  (including  the  King's  Bench)  under  the  provisions  of  the  Statute  of  West- 
minster, and  prohibiting  excessive  bail.  Foote,  The  Coming  Constitutional  Crisis  in 
Bail,  113  U.  Pa.  L.  Rev.  959,  966-68    (1965). 

sThe  Massachusetts  Body  of  Liberties  of  1641  included  the  first  American  bail 
guarantee: 

No  mans  person  shall  be  restrained  or  imprisoned  by  any  Authority  what 
so  ever,  before  the  Law  hath  sentenced  him  thereto,  if  he  can  put  in  suf- 
ficient securities  bayle  or  mainprise,  for  his  appearance,  and  good  behavior 
in  the  meane  time,  unlesse  it  be  Crimes  Capital,  and  Contempts  in  open 
Court,  and  in  such  cases  where  some  expresse  act  of  Court  [i.e.  legislature] 
doth  allow  it." 
The  Colonial  Laws  of  Massachusetts  §  18,  at  37    (W.  Whitmore  ed.  1889) . 

65  F.  Thorpe,  The  Federal  and  State  Constitutions,  Colonial  Charters,  and 
Other  Organic  Laws  3052,  3061    (1909). 

'Commonwealth  v.  Truesdale,  296  A.2d  829,  831   n.2  (Pa.   1972). 
sFoote,  supra  note  4,  at  975. 

journals  of  the  Continental  Congress  752-54  (July  13,  1787);  Foote,  supra  note 
4,  at  970. 

"Act  of  Sept.  24,  1789,  ch.  20,  §  33,  1  Stat.  91. 

nFoote,  supra  note  4,  at  969.  The  provision  entered  the  Mississippi  Territory  in 
the  Act  of  Feb.  10,  1807,  §  1,  and  became  Section  17,  Article  1  of  the  Mississippi  Con- 
stitution of  1817. 

i^See  Comment,  Criminal  Procedure  —  Determination  of  Accused's  Right  to  Bail 
in  Capital  Cases,  7  Vill.  L.  Rev.  438,  450  (1962). 

The  eighth  amendment  to  the  United  States  Constitution  provides:  "Excessive 
bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor  cruel  and  unusual  punish- 
ments inflicted."  Although  the  scope  of  the  eighth  amendment  excessive  bail  provision 
has  become  a  matter  of  increasing  concern,  most  courts  have  agreed  that  it  confers  no 
absolute  right  to  bail  and  certainly  does  not  impinge  upon  the  exercise  of  present 
state  constitutional  bail  requirements.  See,  e.g.,  Fernandez  v.  United  States,  81  S.  Ct. 
642  (1961)  (Harlan,  Circuit  Justice)  Carlson  v.  Landon,  342  U.S.  524,  545  (1952);  Mas- 
trian  v.  Hedman,  326  F.2d  708  (8th  Cir.  1964),  cert,  denied,  376  U.S.  965  (1964);  Arsad 
v.  Henry,  317  F.  Supp.  162  (E.D.N.C.  1970).  But  see  Foote,  supra  note  4;  Note,  Preven- 


1973]  RECENT  DECISIONS  567 

has  been  consistently  interpreted  as  conferring  an  absolute  right  to  bail 
before  conviction  in  all  noncapital  cases,  and  a  discretionary  right  which 
might  be  denied  in  capital  cases13  upon  sufficient  evidence  of  guilt,14 
since  it  was  thought  the  threat  of  a  death  penalty  would  compel  a  re- 
leased prisoner  to  flee.15  The  effect  of  the  abolition  of  capital  punish- 
ment on  the  right  to  bail  in  capital  cases  has  not  been  a  question  limited 
to  the  post-Furman  era.  Legislation  abolished  the  death  penalty  in  a 
number  of  states  prior  to  1972,16  and  the  issue  often  arose  as  to  whether 
restrictions  on  bail  could  continue  even  though  capital  punishment  was 
no  longer  permissible.17  The  problem  was  soon  pinpointed  as  definitional. 

tive  Detention  Before  Trial,  79  Harv.  L.  Rev.  1489,  1489-1500  (1966).  Arguments  that 
a  right  to  bail  is  implicit  in  the  eighth  amendment  have  for  the  most  part  gone 
unheeded  by  the  courts.  Note,  Preventive  Detention,  36  Geo.  Wash.  L.  Rev.  178,  181 
(1967).  Indeed,  the  question  of  any  incorporation  of  the  eighth  amendment  excessive 
bail  provision  on  the  states  has  not  yet  been  answered  in  the  affirmative.  State  v. 
Flood,  269  So.  2d  212,  214  n.l  (La.  1972);  Note,  Preventive  Detention  Before  Trial,  supra, 
at  1495;  see  Collins  v.  Johnston,  237  U.S.  502  (1915).  In  general,  the  effect  of  federal 
law  on  the  ability  of  the  states  to  determine  the  rights  of  the  accused  to  bail  is  so 
minimal  that  it  merits  no  further  consideration  here. 

izSee,  e.g.,  Ex  parte  Ball,  106  Kan.  536,  188  P.  424  (1920);  State  v.  Pett,  253  Minn. 
429,  92  N.W.2d  205  (1958);  Martin  v.  State,  97  Miss.  567,  52  So.  258  (1910);  Ex  parte 
Bridewell,  57  Miss.  39  (1879) ;  Street  v.  State,  43  Miss.  1  (1870) ;  Ex  parte  Wray,  30 
Miss.  673  (1856)  ;  State  v.  Konigsberg,  33  N.J.  367,  164  A.2d  740  (1960)  ;  Ex  parte  Ber- 
man,  86  Ohio  App.  411,  87  N.E.2d  716    (1949). 

i4A  full  discussion  of  the  qualifying  phrase  "when  the  proof  is  evident  or  the 
presumption  great"  is  beyond  the  scope  of  this  note.  The  question  of  the  degree  of 
proof  needed  to  bring  the  individual  case  within  the  constitutional  exception  has 
been  answered  variously  by  the  courts.  In  Mississippi,  the  indictment  raises  a  prima 
facie  case  of  "evident  proof  or  great  presumption"  which  the  defendant  has  the  bur- 
den of  removing.  Prior  to  indictment,  the  burden  of  proof  lies  with  the  state,  since 
no  prima  facie  case  against  the  defendant  has  been  made.  In  either  case,  if  a  "well- 
founded  doubt  of  guilt"  remains,  the  proof  is  insufficient  to  deny  bail.  Huff  v.  Ed- 
wards, 241  So.  2d  654  (Miss.  1970);  Ex  parte  Bridewell,  57  Miss.  39,  42-44  (1879);  Ex 
parte  Wray,  30  Miss.  673  (1856).  For  a  general  introduction  into  the  area,  see  Com- 
ment, Criminal  Procedure  —  Determination  of  Accused's  Right  to  Bail  in  Capital 
Cases,  supra  note  12,  at  438. 

isMost  men,  it  is  argued,  would  forfeit  any  amount  of  property  rather  than  hazard 
their  lives  at  trial.  See,  e.g.,  State  v.  Williams,  30  N.J.  105,  152  A.2d  9,  19  (1959); 
Commonwealth  v.  Truesdale,  296  A.2d  829,  835  (Pa.  1972);  Note,  Preventive  Detention 
Before  Trial,  supra  note  12,  at  1492.  But  see  Weiland  &  Jones,  Federal  Procedural 
Implications  of  Furman  v.  Georgia:  What  Rights  for  the  Formerly  Capital  Offender?, 
1  Am.  J.  Crim.  L.  318   (1972). 

i6fiy  the  date  of  the  Furman  decision,  Alaska,  Hawaii,  Iowa,  Maine,  Michigan, 
Minnesota,  Oregon,  West  Virginia,  and  Wisconsin  had  completely  abolished  the  death 
penalty,  while  in  New  Mexico,  New  York,  North  Dakota,  Rhode  Island,  and  Vermont 
capital  punishment  had  been  repealed  in  almost  all  cases.  Furman  v.  Georgia,  408  U.S. 
238,  298  nn.  52-53   (1972) . 

nin  re  Welisch,  18  Ariz.  517,  163  P.  264  (1917);  Ex  parte  Ball,  106  Kan.  536,  188 
P.  424  (1920) ;  State  v.  Pett,  253  Minn.  429,  92  N.W.2d  205  (1958) ;  In  re  Perry,  19  Wis. 


568  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

In  order  to  be  termed  "capital,"  did  an  offense  require  the  death  penalty 
as  a  contingent  punishment?  Courts  which  considered  the  question  con- 
cluded that  the  term  "capital  offense"  had  the  well-established  meaning 
of  an  offense  which  could  be  punishable  by  death.18  Alternative  defini- 
tions were  rejected  by  noting,  as  did  the  Minnesota  Supreme  Court  in 
State  v.  Pett,19  that  altering  constitutional  phrases  having  such  clear 
meaning  would  have  the  effect  of  judicially  amending  that  document.20 
After  defining  the  offense  in  terms  of  a  penalty,  the  courts  consequently 
read  bail  guarantees  as  requiring  bail  for  all  offenses  except  those  which 
could  result  in  the  death  penalty.  In  states  where  capital  punishment 
had  been  abolished  by  the  legislature,  the  courts  held  that  capital  of- 
fenses were  non-existent,   and  all  crimes  became  absolutely  bailable.21 

711  (1865);  see  Taglianetti  v.  Fontaine,  105  R.I.  596,  253  A.2d  609  (1969)  (constitution 
in  Rhode  Island  included  restrictions  on  the  right  to  bail  for  offenses  punishable  by 
life  imprisonment) ;  City  of  Sioux  Falls  v.  Marshall,  48  S.D.  378,  204  N.W.  999,  1001 
(1925).  The  abolition  of  capital  punishment  also  affected  other  statutes  which  made 
special  provision  for  the  capital  offender,  and  a  few  cases  considered  the  question  as 
it  arose  in  other  contexts.  State  v.  Johnston,  83  Wash.  1,  144  P.  944  (1914)  (extra  per- 
emptory challenges  allowed  for  capital  offenders) ;  Ex  parte  Walker,  28  Tex.  Ct. 
App.  R.  246,  13  S.W.  861  (1889)  (  no  capital  punishment  permitted  for  an  offender 
under  the  age  of  17  years) . 

isCases  cited  note  17  supra.  Scores  of  other  cases  had  occasion  to  define  the  capital 
offense  for  reasons  unrelated  to  the  abolition  of  capital  punishment.  See,  e.g.,  Rakes 
v.  United  States,  212  U.S.  55,  56-57  (1909)  (if  capital  punishment  may  be  inflicted, 
the  crime  is  capital);  State  v.  Christiansen,  165  Kan.  585,  195  P.2d  592,  596  (1948)  (if 
a  person  may  be  sentenced  to  death) ;  Shorter  v.  State,  257  So.  2d  236,  238  (Miss. 
1972)  (any  case  where  the  permissible  punishment  is  death);  State  v.  Konigsberg,  33 
N.J.  367,  164  A.2d  740,  742  (1960)  (those  for  which  the  death  penalty  may  be  im- 
posed) ;  Ex  parte  Herndon,  18  Okla.  Crim.  68,  192  P.  820  (1920)  (where  the  punish- 
ment may  be  death) . 

In  many  states,  the  mandatory  death  sentence  for  certain  crimes  was  made  op- 
tional. Typically,  the  jury  possessed  discretionary  power  to  affix  either  the  death 
penalty  or  a  sentence  of  life  imprisonment.  Defendants  quickly  contended  that  by 
authorizing  the  jury  to  choose  a  punishment  of  life  imprisonment  in  lieu  of  the  death 
penalty,  the  legislature  had  abolished  the  capital  offense.  The  unanimous  rejection 
of  this  argument  by  the  courts  was  well  expressed  by  the  Mississippi  Supreme  Court: 
"Death  is  the  rule,  imprisonment  the  exception.  An  indictment,  therefore,  for  a  crime 
heretofore  capital  must  still  be  regarded  as  an  indictment  for  a  capital  offense  .  .  .  ." 
Ex  parte  Fortenberry,  53  Miss.  428,  430  (1876) ;  accord,  Fitzpatrick  v.  United  States, 
178  U.S.  304,  307  (1900) ;  Commonwealth  ex  rel.  Alberti  v.  Boyle,  412  Pa.  398,  400, 
195  A.2d  97,  98  (1963) . 

19253  Minn.  429,  423-33,  92  N.W.2d  205,  207-08    (1958). 

2o/d.;  accord,  Ex  parte  Ball,  106  Kan.  536,  188  P.  424,  426   (1920) . 

2i£x  parte  Ball,  106  Kan.  536,  188  P.  424  (1920)  ;  State  v.  Pett,  253  Minn.  429, 
92  N.W.2d  205  (1958) ;  City  of  Sioux  Falls  v.  Marshall,  48  S.D.  378,  204  N.W.  999 
(1925) ;  State  v.  Johnston,  83  Wash.  1,  144  P.  944  (1914)  ;  In  re  Perry,  19  Wis.  711 
(1865) .  That  the  judges  were  not  always  happy  with  this  turn  of  events  is  evidenced 
by  the  vitriolic  majority  opinion  in  In  re  Welisch,  18  Ariz.  517,  163  P.  264,  265  (1917) : 

The  people  of  Arizona  at  the  last  election  .  .  .  abolished  capital  punishment 

for  murder,  so   that   now   all   persons   charged   with    the   crime  of  murder, 


1973]  RECENT  DECISIONS  569 

These  decisions,  however,  were  predicated  on  a  legislative  abolition  of 
capital  punishment.22  In  the  last  of  the  pre-Furman  cases,  People  v. 
Anderson,23  the  California  Supreme  Court  judicially  invalidated  the 
death  penalty  as  unconstitutionally  cruel  and  unusual  punishment  while 
simultaneously  retaining  the  capital  offense.  The  California  court  said 
that  the  term  capital  offense  referred  to  a  category  of  offenses  of  such 
gravity  that  the  legislature  had  attached  to  their  commission  certain 
consequences,  including  the  death  penalty  and  restrictions  on  the  right 
to  bail.  That  one  of  those  consequences  could  no  longer  be  constitu- 
tionally imposed  did  not  negate  the  underlying  gravity  of  the  offense 
which  justified  curbs  on  the  right  to  bail.  The  seriousness  of  the  offense, 
not  its  permissible  punishment,  classified  a  crime  as  capital.  With  that 
seriousness  unimpaired  by  a  judicial  pronouncement,  bail  remained  con- 
stitutionally deniable  in  cases  involving  crimes  classified  as  capital  by 
the  California  legislature.24  By  utilizing  the  Anderson  classification 
analysis  and  the  legislative-judicial  distinction  implicit  in  it,  several  post- 
Furman  decisions  retained  the  capital  offense  and  perpetuated  restric- 
tions on  the  right  to  bail.25  Others  employed  the  traditional  definition 
of  the  term  as  a  function  of  capital  punishment  and  removed  it  from 
operative  existence,  making  all  offenses  in  their  jurisdictions  bailable 
by  right.26 

In  the  instant  case  the  court  found  that  retention  of  the  capital 
offense  was  necessary  to  the  orderly  administration  of  criminal  statutes 
incorporating  that  and  similar  terms.27   Noting  that  the  classification  of 

however  diabolical  or  atrocious  it  may  be,  and  howsoever  evident  may  be 

the  proof  of  guilt  thereof,  as  well  as  all  other  crimes  not  punishable  with 

death,  may,  before  conviction,  demand  admission   to  bail  as  a  strict  legal 

right,  which  no  judge  or  court  can  properly  refuse. 

22See  cases  cited  note  17  supra. 

236  Cal.  3d  628,  493  P.2d  880,  100  Cal.  Rptr.  152   (1972) . 

24/d,  at  657  n.45,  493  P.2d  at  899-900  n.45,  100  Cal.  Rptr.  at  171-72  n.45. 

25See  People  ex  rel.  Dunbar  v.  District  Ct.  of  the  Eighteenth  Judicial  Dist.,  500 
P.2d  358,  359  (Colo.  1972)  ("Our  Constitution  has  defined  a  class  of  crimes  which 
permits  the  denial  of  bail.");  State  v.  Flood,  269  So.  2d  212,  214  (La.  1972) 
("Furman  v.  Georgia  does  not  destroy  the  system  of  classification  of  crimes 
in  Louisiana.  The  crime  remains  unchanged;  only  the  penalty  has  been  changed.") ; 
State  v.  Holmes,  269  So.  2d  207,  209  (La.  1972)  ("[W]e  conclude  that  we  should  .  .  . 
interpret  Article  7,  Section  41  of  the  Louisiana  Constitution  as  referring  to  classes 
of  crimes  .  .  .  .") . 

26State  v.  Aillon,  295  A.2d  666  (Conn.  1972) ;  Donaldson  v.  Sack,  265  So.  2d  499 
(Fla.  1972) ;  State  v.  Johnson,  61  N.J.  351,  294  A.2d  245  (1972) ;  Edinger  v.  Metzger, 
32  Ohio  App.  263,  290  N.E.2d  577  (1972) ;  Commonwealth  v.  Truesdale,  296  A.2d  829, 
832  (Pa.  1972) ;  Ex  parte  Contella,  485  S.W.2d  910  (Tex.  Crim.  App.  1972) . 

27Statutes  containing  references  to  the  capital  offense  include:  Miss.  Code  Ann. 
§§  1795  (1956)  (special  venire  in  capital  cases) ,  2017  (penalties  for  attempted  capital 
and  noncapital  crimes) ,  2520  (12  peremptory  challenges  allowed  in  capital  cases 
while  only  six  permitted  in  other  crimes) ,  2505  (copy  of  indictment  and  list 
of  special  venire  to  be  delivered  to  the  defendant  one  day  before  trial) ,  2505-2 
(Supp.  1972)     (two  counsel  may  be  appointed  for  indigent  capital  defendants)  . 


570  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

crimes  as  capital  is  a  proper  legislative  function,  the  court  concluded 
that  a  capital  offense  is  any  offense  for  which  the  legislature  has  pro- 
vided the  death  penalty,  even  though  capital  punishment  could  no  longer 
be  constitutionally  imposed.  The  court  further  concluded  that,  despite 
the  abolition  of  capital  punishment  in  Furman,  bail  might  still  be 
constitutionally  denied  in  cases  involving  capital  offenses  "when  the 
proof  is  evident  or  the  presumption  great."28 

Justice  Patterson,  writing  for  the  dissenting  justices,  emphasized  that 
the  punishment  inflicted  has  served  as  the  definitive  test  of  a  capital 
offense  in  virtually  all  cases,  and  therefore  Furman  effectively  elim- 
inated capital  offenses  from  the  law  of  the  state.  Justice  Patterson 
further  stated  that  with  the  exception  to  the  constitutional  right  to  bail 
expunged,  all  offenses  are  bailable.  Further,  the  dissent  warned,  neither 
the  courts  nor  the  legislature  has  the  right  to  amend  the  constitution 
by  redefining  unequivocal  terms.  The  dissent  concluded  that  a  specu- 
lative fear  of  confusion  in  the  administration  of  criminal  statutes  was 
insufficient  to  justify  a  reconstruction  which  would  serve  to  punish  pre- 
sumably innocent  individuals  before  conviction. 

The  instant  decision  arose  as  part  of  a  nationwide  reaction  to 
the  abolition  of  capital  punishment  in  Furman.2*  Although  Hudson 
represents  a  departure  from  the  traditional  method  of  examining  the 
capital  offense  and  the  right  to  bail,  it  is  by  no  means  a  unique  approach. 
At  least  three  other  states  have,  since  Furman,  begun  classifying  crimes 
as  capital  according  to  their  legislatively  determined  nature.30  Con- 
ceptions of  public  policy  may  have  played  a  role  in  the  doctrinal  exodus. 
As  a  result  of  Furman  many  states  that  had  legislated  special  procedural 
rights  for  the  capital  offender  in  contexts  other  than  bail31  have  been 
left  clutching  possibly  obsolete  and  contradictory  criminal  statutes. 
Although  it  appears  unlikely  that  these  statutes  will  long  remain  in 
their  present  form,  in  the  interim  many  courts  will  be  tempted  to 
adopt  a  rationale  which  mitigates  disturbance  in  the  system  of  crim- 
inal justice,  at  least  until  legislatures  revise  statutes  which  now  refer 
to  capital  offenses.  An  alternative  result  is  also  possible.  In  Mississippi 
and  other  states  in  which  courts  have  preserved  the  status  quo  by 
sustaining  the  viability  of  the  capital  offense,  legislatures  could  adopt 

28Justice  Smith  concurred  in  the  majority  opinion.  The  invalidation  of  the  death 
penalty  "through  the  interposition  of  federal  power"  did  not,  in  his  opinion,  alter 
the  legislative  definition  of  the  capital  offense.  268  So.  2d  916,  927    (Miss.  1972) . 

z^See  cases  cited  notes  25  &  26  supra. 

soSee  cases  cited  note  25  supra. 

ziSee,  e.g.,  Ala.  Code  tit.  15,  §  318  (1959)  (compensation  and  duties  of  ap- 
pointed counsel  in  capital  cases) ;  Fla.  Stat.  Ann.  §  913.10  (1973)  (providing  for 
a  12-member  jury  in  capital  cases,  and  a  six-member  jury  in  all  other  criminal  cases) ; 
La.  Code  Crim.  Pro.  Ann.  arts.  782  (unanimous  verdict  required  in  capital  cases) , 
791  (sequestering  of  jury  in  capital  cases) ,  798  (1969)  (allowing  challenges  of  jurors  for 
cause  by  the  state  in  capital  cases  on  grounds  that  the  juror  has  scruples  against 
capital  punishment)  ;  Mass.  Gen.  Laws  Ann.  ch.  274,  §  6  (penalties  for  attempt  of 
crimes  punishable  by  death) ,  ch.  268,  §  1  (1970)  (penalties  for  perjury  in  capital  and 
noncapital   cases) . 


1973]  RECENT  DECISIONS  571 

a  laissez-faire  attitude  toward  present  criminal  statutes  and  allow 
special  treatment  of  the  capital  offender  to  continue.  A  legislative 
failure  to  purge  from  the  statutes  all  traces  of  the  capital  offense 
would  render  the  existence  of  important  procedural  rights  granted 
to  selected  defendants  contingent  upon  retention  by  the  courts  of 
a  tenuous  definition  of  the  capital  offense.  It  appears  even  more 
likely  that  some  legislatures  will  reinstate  a  mandatory  death  penalty 
for  limited  offenses  in  an  attempt  to  satisfy  the  command  of  Furman. 
Assuming  the  validity  of  such  an  approach,  a  restoration  of  the  death 
penalty  would  moot  the  holding  in  the  instant  case  by  making  the 
separate  definitions  of  the  capital  offense  coextensive  once  again. 

The  immediate  effect,  however,  of  the  instant  decision  may  well 
be  to  reinforce,  rather  than  lessen,  the  total  protection  given  the  in- 
dividual accused  of  an  offense  formerly  punishable  by  death.  Since 
the  capital  offense  is  also  preserved  in  those  statutes  which  provide 
additional  safeguards  for  the  accused,  capital  defendants  retain  their 
rights  to  six  additional  peremptory  challenges,  a  special  venire  together 
with  additional  time  to  investigate  the  indictment  and  prospective 
jurors,  and  two  appointed  attorneys  in  case  of  indigency  instead  of 
the  one  allowed  for  the  ordinary  defendant.32  These  rights  would  have 
vanished  had  the  traditional  definition  of  the  capital  offense  been  em- 
ployed. Yet,  are  these  benefits  still  appropriate?  The  legislature  certainly 
did  not  intend  to  grant  preferential  treatment  to  those  accused  of 
capital  crimes  because  of  the  abhorrent  nature  of  their  offense.  Rather, 
the  severity  and  finality  of  the  penalty  awaiting  the  accused  prompted 
the  added  safeguards.  Since  the  basis  for  their  existence  has  been 
abolished,  the  extra  rights  possessed  by  the  erstwhile  capital  offender 
might  equitably  be  removed. 

The  present  decision  rests  on  weak  conceptual  underpinnings. 
For  over  a  century,  capital  punishment  has  been  considered  a  pre- 
requisite to  the  capital  offense.  The  Supreme  Court  of  Pennsylvania 
set  forth  the  orthodox  view  in  Commonwealth  v.  Truesdale:33  "After 
intensive  study  and  reflection  we  rule  that  the  constitutional  phrase 
'capital  offense'  is  a  definition  of  a  penalty,  i.e.,  the  death  penalty  .  .  .  ." 
The  question  is  not  one  of  first  impression  in  Mississippi.  In  1856,  the 
Mississippi  Supreme  Court,  while  speaking  of  the  capital  offense  ex- 
ception to  the  right  to  bail,  said,  "But  if  the  offense  is  not  shown  by 
evident  proof  or  great  presumption  to  be  one  for  the  commission  of 
which  the  law  inflicts  capital  punishment  bail  is  not  a  matter  of  mere 
discretion  with  the  court,  but  of  right  to  the  prisoner."34  This  clear 
statement  of  the  vital  connection  between  the  death  penalty  and  the 
right  to  bail  was  reinforced  in  Ex  parte  Fortenberry35  where  it  was 
said  that  an  offense  for  which  the  death  penalty  may  be  imposed 
remains  capital  until  the  jury,  by  fixing  a  sentence  of  life  imprison- 
ment,  divests  it  of  its   capital   quality.   Less   than  a   year   before   the 

32See  statutes  cited  note  27  supra. 

33296  A.2d  829,  832    (Pa.  1972) . 

34£*  parte  Wray,  30  Miss.  673,  679    (1856) . 

3553  Miss.  428,  430    (1876) . 


572  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Hudson  decision,  this  same  court  stated  flatly  that  "fa]ny  case  where 
the  permissible  punishment  is  death  is  a  capital  case  .  .  .  ."36  By  this 
line  of  cases,  Mississippi  had  long  been  among  the  states  defining  the 
capital  offense  in  terms  of  the  death  penalty.  Moreover,  until  the 
watershed  Anderson  footnote,37  the  abolition  of  capital  punishment 
was  universally  held  to  render  all  offenses  bailable  as  a  matter  of  ab- 
solute right.  That  the  earlier  abolitions  of  capital  punishment  were 
legislative  rather  than  judicial  is  clearly  immaterial  to  the  logic  of  the 
cases.  By  characterizing  the  issue  as  a  new  question  begotten  by  Furman, 
and  by  ignoring  conceptual  precedents  in  favor  of  speculative  con- 
sequences, the  court  here  implicitly  conceded  the  doctrinal  weaknesses 
in  its  decision. 

Even  more  compelling  reasons  exist  for  adopting  the  result  opposite 
to  that  reached  in  the  instant  case.  The  entire  thrust  of  American  bail 
law  centers  around  the  right  of  the  individual  to  be  free  of  discretionary 
punishment  prior  to  a  formal  adjudication  of  guilt.  Thus,  most  state 
constitutions  define  bail  in  terms  of  a  nondiscretionary  right  abridged 
only  for  pressing  exigencies  in  capital  offenses  where  the  proof  is  evi- 
dent or  the  presumption  great.38  Bail  is  denied  to  those  accused  of 
capital  crimes  for  the  same  reason  that  a  bail  bond  is  required  for 
release  in  noncapital  cases,  i.e.,  to  insure  the  presence  of  the  accused 
at  trial.39  Justification  for  the  denial  inhered  solely  in  the  severity  and 
irrevocability  of  the  death  penalty.  Without  a  possible  capital  punish- 
ment, the  flight  motive  is  now  so  attenuated  that  the  accused's  presence 
may  be  reasonably  assured  by  the  posting  of  a  bail  bond.  To  the  extent 
that  the  law  denies  bail  for  any  reason  other  than  to  secure  the  presence 
of  the  accused  at  trial,  the  individual  is  effectively  punished  for  an 
offense  of  which  he  stands  unconvicted.  Also,  preparation  for  his  de- 
fense is  seriously  impaired.40  Indeed,  the  only  public  policy  argument 
which  might  rationally  be  advanced  for  a  continuing  denial  of  pretrial 
release  in  the  absence  of  capital  punishment  revolves  around  preventive 
detention.  Although  it  has  been  contended  that  protection  of  society 
from  future  depredations  by  the  accused  has  always  been  a  conscious 
motive  in  the  denial  of  bail  in  capital  cases,41  the  case  law  provides  no 

seshorter  v.  State,  257  So.  236,  238   (Miss.  1972) . 

376  Cal.  3d  at  657  n.45,  493  P.2d  at  899-900  n.45,  100  Cal.  Rptr,  at  171-72  n.45 
(1972) . 

ss  Cases  cited  note  13  supra. 

wSee  Royalty  v.  State,  235  So.  2d  718,  720  (Miss.  1970);  Note,  Preventive  De- 
tention, supra  note  12;  Note,  Preventive  Detention  Before  Trial,  supra  note  12, 
at  1492. 

40Note,  Bail:  An  Ancient  Practice  Reexamined,  70  Yale  L.J.  966,  969    (1961) . 

4i\Veiland  &  Jones,  Federal  Procedural  Implications  of  Furman  v.  Georgia:  What 
Rights  for  the  Formerly  Capital  Offender?,  1  Am.  J.  Crim.  L.  318   (1972) . 

Federal  law,  however,  clearly  recognizes  a  preventive  detention  logic.  The  Bail 
Reform  Act,  18  U.S.C.  §  3148    (Supp.  1972),  provides  in  part: 

A  person  (1)  who  is  charged  with  an  offense  punishable  by  death  .  .  . 
shall  be  treated  in  accordance  with  the  provisions  of  section  3146  (providing 
for  the   right   to  bail   in   noncapital   cases)    unless   the  court   or  judge   has 


1973]  RECENT  DECISIONS  573 

support  for  this  conclusion.  Moreover,  preventive  detention  remains  a 
controversial  and  perhaps  unconstitutional  measure  which  should  not 
be  unilaterally  imposed  by  the  judiciary.42 

The  court  in  the  instant  decision  followed  the  doctrinal  path 
blazed  by  the  California  court  in  Anderson.  The  idea  that  the 
capital  offense  is  defined,  not  by  the  punishment  inflicted  for  its 
commission,  but  by  legislative  classification  was  used  as  the  conceptual 
tool  to  retain  the  capital  offense  and  thereby  continue  exceptions  to 
the  right  to  bail.  However,  the  theoretical  ramifications  of  the  decision 
apparently  interested  the  court  less  than  the  practical  consequences  it 
believed  would  flow  from  the  adoption  of  the  traditional  position.  In 
effect,  the  court  said  that  the  Furman  decision  created  difficulties  in 
construing  existing  criminal  statutes;  therefore,  the  effects  of  that  de- 
cision were  minimized  by  a  redefinition  of  the  capital  offense.  Aside 
from  the  impropriety  of  judicially  amending  the  constitution  by  a 
redefinition  of  terms,43  this  decision  is  unsatisfactory  on  its  own 
premises.  Any  confusion  in  present  criminal  statutes  could  be  easily 
rectified  by  legislative  amendment,  and  a  continuation  of  restrictions 
on  the  right  to  bail  after  removal  of  the  raison  d'etre  of  those  restric- 
tions violates  fundamental  concepts  of  American  bail  law. 

W.  Wayne  Drinkwater 


reason  to  believe  that  no  one  or  more  conditions  of  release  will  reasonably 
assure  that  the  person  will  not  flee  or  pose  a  danger  to  any  other  person 
or  to  the  community.  If  such  a  risk  of  flight  or  danger  is  believed  to 
exist  .  .  .  the  person  may  be  ordered  detained. 

42For  discussion  on  preventive  detention  see  Mitchell,  Bail  Reform  and  the  Con- 
stitutionality of  Pre-trial  Detention,  55  U.  Va.  L.  Rev.  1223  (1969) ;  Tribe,  An 
Ounce  of  Prevention:  Preventive  Justice  in  the  World  of  John  Mitchell,  56  U.  Va. 
L.  Rev.  371  (1970)  ;  Note,  Preventive  Detention  Before  Trial,  supra  note  12; 
Note,  Bail:  An  Ancient  Practice  Reexamined,  70  Yale  L.J.  966  (1961) . 
43State  v.  Pett,  253  Minn.  429,  432-33,  92  N.W.2d  205,  207-08    (1958)  . 


574  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

Torts  —  Domestic  Relations  —  Wife  Has  Independent  Right  to 
Recover  Parential  Damages  in  a  Child  Injury  Suit 

Nonresident  plaintiffs,  husband  and  wife,  brought  a  diversity  neg- 
ligence action1  in  federal  district  court  to  recover  for  loss  of  their  child's 
earnings  and  services,  for  the  mother's  personal  nursing  services,  and 
for  medical  expenses  resulting  from  injuries  to  their  unemancipated 
minor  son.  The  child  was  severly  injured  when,  left  unattended  by  his 
father,  he  attempted  to  cross  a  highway  and  was  struck  by  defendant's 
truck.2  The  defendants  contended  that  the  sole  right  to  sue  for  parental 
damages  is  vested  in  the  father,  and  that  any  damages  should  be  reduced 
by  his  negligence  under  the  Mississippi  comparative  negligence  statute.3 
The  plaintiffs  contended  that  the  mother,  who  was  not  negligent,  had  a 
separate  and  independent  right  to  an  unmitigated  recovery  of  all  dam- 
ages incurred  by  her.4  The  Federal  District  Court  for  the  Northern  Dis- 
trict of  Mississippi  adopted  the  defendants  position  and  reduced  the 
total  damages  awarded  plaintiffs  by  two-thirds.5  On  appeal  to  the  Fifth 

iThe  suit  was  brought  in  the  United  States  District  Court  for  the  Northern 
District  of  Mississippi  under  the  court's  diversity  jurisdiction.  The  plaintiffs  were 
citizens  of  Indiana  and  the  defendants  were  citizens  of  New  Jersey  and  Mississippi. 

2The  district  court,  sitting  without  a  jury,  concluded  that  the  father  had 
failed  to  exercise  ordinary  care  in  placing  a  child  of  such  tender  years  in  what  any 
reasonable  man  would  recognize  as  a  precarious  position— alone  and  unattended 
near  a  heavily  traveled  highway.  The  court  found  that  this  lack  of  care  was  a 
major  contribution  to  the  cause  of  the  child's  injuries.  Wright  v.  Standard  Oil  Co., 
319  F.  Supp.  1364    (N.D.  Miss.  1970) . 

sMiss.  Code  Ann.  §  1454  (1956)  provides  that  in  all  actions  brought  for 
personal  injury  or  death,  the  contributory  negligence  of  the  plaintiff  will  not 
constitute  a  bar  to  recovery,  but  that  damages  will  be  diminished  in  proportion 
to  the  amount  of  negligence  attributed  to  the  plaintiff.  See  Anderson  v.  Eagle  Motor 
Lines,  Inc.,  423  F.2d  81,  83  (5th  Cir.  1970) ;  1  T.  Cooley,  A  Treatise  on  The 
Law  of  Torts  568    (3d  ed.  1906) . 

4The  appellants  also  contended  that  the  husband  should  be  absolved  of  his 
negligence  under  the  last  clear  chance  doctrine.  Both  courts  rejected  this  argument 
under  the  Mississippi  rule  that  the  tortfeasor  must  have  "actually  discovered  and 
actually  realized"  the  injured  party's  peril  before  the  doctrine  will  be  enforced. 
Illinois  Cent.  R.R.  v.  Underwood,  235  F.2d  868,  877  (5th  Cir.  1956) ,  cert,  denied, 
352  U.S.  1001  (1957) .  The  district  court  found  that  the  driver  of  the  truck  had  not 
been  aware  of  the  child's  presence  before  the  accident  occurred,  and,  therefore, 
had  no  conscious  knowledge  of  the  child's  peril.  See  Restatement  (Second)  of 
Torts  §  479,  at  530-31    (1965) . 

sThe  court,  recognizing  that  no  "fixed  rule"  existed  to  assess  the  relative  amounts 
of  negligence  of  each  party,  found  as  a  trier  of  fact  that  the  father's  negligence  was 
twice  that  of  the  truck  driver.  Wright  v.  Standard  Oil  Co.,  319  F.  Supp.  1364,  1373 
(N.D.  Miss.  1970) .  Thus  the  court  reduced  the  total  damages  of  $187,104.92,  which 
included  $6000.00  for  the  child's  earnings  and  services  and  $115,760.00  for  the  wife's 
nursing  services,  by  a  factor  of  two-thirds  in  computing  the  final  award  of 
$62,368.31. 


1973]  RECENT  DECISIONS  575 

Circuit  Court  of  Appeals,  held,  reversed  in  part  and  remanded  in  part.6 
Under  Mississippi  law,  in  a  joint  action  by  a  husband  and  wife  seeking 
to  recover  for  injuries  to  their  child,  the  wife  has  a  separate  and  in- 
dependent right  to  recover  full  compensation  for  her  personal  services 
or  expenses  and  an  equal  interest  in  the  child's  lost  earnings  and  ser- 
vices. Wright  v.  Standard  Oil  Co.,  470  F.2d  1280   (5th  Cir.  1972) . 

When  an  unemancipated  child  is  negligently  injured,  two  separate 
causes  of  action  arise  against  the  tortfeasor:  one  in  the  child  for  per- 
sonal injuries  and  pain,  and  one  in  the  parent  for  damages  to  the  family 
relationship.7  Although  the  parental  action  was  recognized  at  common 
law,8  it  was  vested  solely  in  the  father  as  the  legally  superior  figure  of 
the  family  unit.9  In  addition,  the  mother's  right  to  sue  was  barred  on 
procedural  grounds,  since  her  separate  legal  rights  ceased  to  exist  upon 
marriage.10  This  barrier  was  removed  in  the  middle  19th  century  by 
numerous  state  legislatures  with  the  passage  of  Married  Women's  Acts 
which  gave  the  wife  recognition  as  a  legal  entity  with  the  right  to  sue 


sThe  district  court  decision  was  reversed  as  to  the  wife's  recovery  of  com- 
pensation for  her  nursing  services  and  an  equal  share  of  the  child's  earnings  and 
services.  The  determination  of  proper  recovery  of  the  medical  expenses  was  remanded 
for  further  hearings  by  the  district  court  in  light  of  the  recognition  of  the  wife's 
potential  right  of  recovery. 

7Generally  these  damages  take  the  form  of  additional  expenses  necessary  in  sup- 
porting the  injured  child  and  the  loss  of  the  minor  child's  future  earnings  and 
services.  In  early  cases,  it  was  necessary  for  the  parent  to  actually  show  that  the 
child  was  performing  valuable  services  in  order  for  the  action  to  be  heard,  but 
this  requirement  has  become  an  insignificant  formality  today.  See  Stewart  v.  Gold 
Medal  Shows,  244  Ala.  583,  14  So.  2d  549  (1943)  (loss  of  actual  services  no  longer 
required) ;  Birmingham  Ry.,  Light  &  Power  Co.  v.  Baker,  161  Ala.  135,  49  So.  755 
(1909) ;  Ellington  v.  Ellington,  47  Miss.  329  (1872) ;  Huft  v.  Khun,  277  S.W.2d  552 
(Mo.  1955) ;  1  F.  Harper  &  F.  James,  The  Law  of  Torts  §  703  (1938) ;  Annot.,  10 
A.L.R.2d  1060,  1066  (1953) ;  Foster,  Relational  Interests  of  the  Family,  1962  U.  III. 
L.  F.  493. 

sNorton  v.  Jason,  82  Eng.  Rep.  809   (K.B.  1653)  . 

©Fairmount  &  A.  Street  Passenger  R.R.  v.  Stutter,  54  Pa.  375  (1867) .  Under  the 
Biblical  and  common  law  family  unit  theory,  the  status  of  the  wife  was  in  all 
practicality  that  of  a  superior  servant  to  the  father.  W.  Prosser,  Handbook  Of  The 
Law  Of  Torts  §  124,  at  873  (4th  ed.  1971) .  Thus  the  father  had  a  legally  protected 
right  to  the  services  of  the  child.  Since  the  wife,  while  the  husband  was  living, 
was  said  to  have  no  legal  rights  to  the  child's  services,  it  follows  that  she  could 
not  bring  the  action  as  she  had  no  legally  protected  interest  on  which  she  could 
sue.  Pyle  v.  Waechter,  202  Iowa  695,  210  N.W.  926  (1926) ;  Soper  v.  Igo,  Walker  & 
Co.,  121  Ky.  550,  89  S.W.  538  (1905) .  See  generally  McKay,  Is  a  Wife  Entitled  to 
Damages  for  Loss  of  Consortium,  64  Dick.  L.  Rev.  57    (1959) . 

iQThompson  v.  Thompson,  218  U.S.  611  (1910);  Welch  v.  Davis,  410  111.  130, 
101  N.E.2d  547  (1951) ;  W.  Blackstone,  Commentaries  453  (Tucker  ed.  1803) ; 
Keegan,  The  Family  And  Tort  Actions,  1962  U.  III.  L.F.  557. 


576  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

and  be  sued.11  Most  courts,  however,  continued  to  deny  the  existence 
of  the  woman's  right  to  recover  for  negligent  damage  to  family  relation- 
ships.12 While  some  courts  have  recognized  the  mother's  right  to  recover 
for  parental  damages  when  the  father  has  deserted,13  is  dead,14  or  im- 
prisoned,15 the  majority  of  the  courts  have  allowed  only  the  father  to 
sue  in  the  normal  family  situation.16  These  decisions  are  based  upon 

"Miss.  Code  Ann.  §  451    (Supp.  1972) ,  which  states: 

Married  women  are  fully  emancipated  from  all  disability  on  account  of 
coverture;  and  the  common  law  as  to  the  disabilities  of  married  women 
and  its  effect  on  the  rights  of  property  of  the  wife,  is  totally  abrogated,  and 
marriage  shall  not  impose  any  disability  or  incapacity  on  a  woman  .  .  .  but 
every  woman  now  married,  or  hereafter  to  be  married,  shall  have  the 
same  capacity  to  acquire,  hold,  manage,  control,  use,  enjoy,  and  dispose  of 
all  property  .  .  .  and  to  make  any  contract  in  reference  to  it,  and  to 
bind  herself  personally,  and  to  sue  and  be  sued,  with  all  the  rights  and 
liabilities  incident  thereto,  as  if  she  were  not  married. 
See  3  C.  Vernier,  American  Family  Laws  §§  167,  179,  180  (1935) ,  for  a  summary 
of  Married  Women's  Acts  in  all  states. 

izSee  Chitcoter  &  McBride,  Wife's  Claim  For  Loss  Of  Consortium,  27  Ins.  Coun- 
sel J.  384  (1960)  ;  McKay,  supra  note  9.  A  striking  example  of  the  courts  reluctance  to 
recognize  a  married  woman's  right  of  action  in  family  relation  torts  is  illustrated 
by  the  history  of  the  action  for  loss  of  the  companionship  and  services,  or  consortium 
of  an  injured  spouse.  Although  the  husband's  right  of  recovery  had  been  almost 
unanimously  upheld,  not  a  single  jurisdiction,  with  the  exception  of  North  Carolina, 
recognized  the  right  of  a  wife  to  recover  for  loss  of  her  husband's  companionship 
until  Hitaffer  v.  Argonne  Co.,  183  F.2d  811  (D.C.  Cir.  1950),  cert,  denied,  340  U.S. 
852  (1950)  .  Subsequently,  Mississippi  became  one  of  the  first  states  to  adopt  this 
new  rule.  Delta  Chevorlet  Co.  v.  Waid,  211  Miss.  256,  51  So.  2d  443  (1951).  The 
most  common  policy  arguments  of  those  jurisdictions  still  failing  to  recognize  the 
wife's  legal  right  to  this  family  relationship  are  that  the  Married  Women's  Acts 
did  not  create  a  new  cause  of  action  in  the  wife  for  a  right  not  recognized  at 
common  law.  Other  jurisdictions  indicated  the  fear  of  double  recovery  for  the 
husband's  injuries  if  the  wife's  rights  were  recognized.  21  Ohio  St.  L.J.  687  (1960) . 
See,  e.g.,  McKay,  supra  note  9;  Simeone,  The  Wife's  Action  For  Loss  Of  Consortium- 
Progress  Or  No?,  4  St.  Louis  U.L.J.  424  (1957) ;  Comment,  Judicial  Treatment 
Of  Negligent  Invasion  Of  Consortium,  61  Colum.  L.  Rev.  1341    (1961) . 

isMcGahey  v.  Albritton,  214  Ala.  279,  107  So.  751  (1926);  Coleman  v.  Dublin 
Coca-Cola  Bottling  Co.,  47  Ga.  App.  369,  170  S.E.  549  (1933) .  But  see  Beigler  v. 
Chamberlin,  138  Minn.  377,  165  N.W.  128  (1917)  (law  creates  implied  promise  by 
father  who  abandons  to  pay  for  support  of  child) . 

"Martin  v.  City  of  Butte,  834  Mont.  281,  86  P.  264  (1906) .  But  see  American 
Steel  &  Wire  Co.  v.  Tynan  183  F.  249  (3rd  Cir.  1911)  (construing  Pennsylvania  law, 
court  held  that  statute  authorizing  wife's  suit  when  father  abandons  does  not 
authorize  her  suit  when  father  dies) . 

isTrinity  County  Lumber  Co.  v.  Conner,  187  S.W.  1022  (Tex.  Civ.  App.  1916)  . 
ieJE.g.,  Buhler  v.  Cohn,  31  Ga.  App.  463,  120  S.E.  785  (1923) ;  Nicholas  v.  Harvey, 
206  Ky.  112,  266  S.W.  870  (1924);  Ober  v.  Crown  Heights  Hosp.,  138.  N.Y.S.2d  190 
(Sup.  Ct.  1954) ;  White  v.  Holding,  217  N.C.  329,  7  S.E.2d  825  (1940) .  See  also  King  v. 
Southern  Ry.,  126  Ga.  794,  55  S.E.  965  (1906)  (father's  action  not  transferred  to 
mother  upon  his  death)  ;  Gilley  v.  Gilley,  79  Me.  292,  9  A.  623    (1887) . 


1973]  RECENT  DECISIONS  577 

two  surviving  common  law  principles  of  the  father's  superior  position 
in  the  family:  that  the  father  alone  is  legally  entitled  to  the  services 
of  his  child,17  and  that  the  father's  primary  duty  of  support  establishes 
his  right  to  recover  damages  incurred  by  the  family.18  Many  states,  how- 
ever, have  altered  these  common  law  maxims  by  legislation  which 
equally  distributes  the  parental  rights  and  duties.19  Statutes  which 
equalize  the  parents'  rights  to  services  of  the  child  have  been  interpreted 
as  giving  the  married  woman  a  legally  enforceable  claim  to  an  equal 
share  of  the  injured  child's  services  and  earnings.20  Likewise,  in  juris- 
dictions specifically  equalizing  the  parents'  obligation  to  support  a 
child,21  a  growing  number  of  courts  have  recognized  a  legally  protected 
claim  for  recovery  of  parental  expenses  in  the  mother.22  Thus,  recent 
decisions  in  these  jurisdictions  have  allowed  the  mother  to  recover  for 
her  services  and  expenses  occasioned  by  a  child's  injuries  when  such 
damages  are  personally  identifiable  to  her.23  Although  Mississippi  has 

nKg.,  Cohen  v.  Sapp,  110  Ga.  App.  413,  138  S.E.2d  749  (1964);  Doyle  v. 
Rochester  Times-Union,  249  N.Y.S.  30  (App.  Div.  1931) ;  Smith  v.  Hewett,  235 
N.C.  615,  70  S.E.2d  825  (1952);  White  v.  Holding,  217  N.C.  329,  7  S.E.2d  825 
(1940) ;  cf.  Leahy  v.  Morgan,  275  F.  Supp.  424    (N.D.  Iowa  1967) . 

isBuhler  v.  Cohn,  31  Ga.  App.  463,  120  S.E.  785  (1923) ;  Ober  v.  Crown  Heights 
Hosp.,  138  N.Y.S.2d  190  (Sup.  Ct.  1954) ;  Smith  v.  Hewett,  235  N.C.  615,  70  S.E.2d  825 
(1952)  .  See  also  Alvery  v.  Hartwig,  106  Md.  254,  67  A.   132    (1907) . 

isFor  a  summary  of  typical  state  statutes  affecting  parental  rights  see  4  C. 
Vernier,  supra  note  11,  §§  232,  234,  265    (1936)  . 

soStandard  Dredging  Corp.  v.  Johnson,  150  F.2d  78,  81  (5th  Cir.  1945)  (con- 
struing Miss.  Code  Ann.  §  399  (Supp.  1972)  as  given  both  parents  equal  rights  to 
earnings  of  son  in  wrongful  death  action) ;  Pangborn  v.  Central  R.R.,  32  N.J. 
Super.  289,  108  A.2d  276  (App  Div.  1954)  (construing  N.  J.  Rev.  Stat.  9:1-1  as  giving 
both  parents  equal  rights  to  recover  services  but  father  only  recovers  for  expenses;  cf., 
WiUiams  v.  Legree,  206  So.  2d  13    (Ha.  Dist.  Ct.  App.  1968) . 

ziThe  language  of  a  Mississippi  statute  is  typical  of  those  interpreted  as 
conferring  on  a  wife  an  equal  duty  to  support  her  children.  Miss.  Code  Ann.  §  399 
(1956)    provides  in  part: 

The   father    and    the   mother    are   joint    natural    guardians    of   their   minor 
children    and    are   equally   charged   with    their   care.    .    .    .   The   father   and 
mother   shall   have   equal   powers   and   rights,    and   neither   parent   has   any 
right    paramount    to    the    right    of    other    concerning    the    custody    of    the 
minor  or  the  control  of  the  services  or  the  earnings  of  such  minor.  .  .  . 
22South western  Gas  &  Elec.  Co.  v.  Denny,  190  Ark.  934,  82  S.W.2d  17    (1935) ; 
Winnick  v.  Kupperman,  29  App.  Div.  2d  261,  287  N.Y.S.2d  329    (App.  Div.   1968)  ; 
see  Pokeda  v.  Nash,  47  N.Y.S.2d  954   (Sup.  St.  1944) . 

23Armstrong  v.  Onufrock,  341  P.2d  105  (Nev.  1959)  ;  Bush  v.  Bush,  95  N.J. 
Super.  368,  231  A.2d  245,  251  (Law  Div.  1967)  (allowing  mother  to  recover  hospital 
expenses  for  child  where  mother  had  expended  her  own  money) ;  Winnick  v.  Kup- 
perman, 287  N.Y.S.2d  329  (App.  Div.  1968)  .  See  also  Skollingsberg  v.  Brookover, 
26  Utah  2d  45,  484  P.2d  1177  (1971),  where  the  court  recognized  that  the  father 
should  normally  bring  a  suit  to  recover  parental  damages  for  an  injured  child, 
but  stated  that  this  rule  was  applied  for  procedural  purposes.  Thus  the  court 
allowed  the  mother  to  bring  the  suit  as  a  trustee  for  the  benefit  of  her  immigrant 
husband  who  spoke  little  English. 


578  MISSISSIPPI  LA  W  JO URNAL  [vol.  44 

such  a  statutory  provision,  the  specific  question  of  a  mother's  right  to 
recover  these  personal  service  damages  has  never  been  adjudicated  in 
a  reported  state  decision.24  Perhaps  the  most  significant  advance  in 
the  area  of  women's  family  relationship  actions  has  been  the  recent 
emergence  of  14th  amendment  arguments25  in  actions  for  loss  of  con- 
sortium26 of  a  negligently  injured  spouse.  Currently,  one  state  and  two 
federal  jurisdictions  have  held  that  refusal  of  the  wife's  claim  while 
recognizing  the  husband's  claim  is  an  unconstitutional  denial  of  due 
process27  and  equal  protection.28  Although  married  women's  actions 
for  recovery  of  losses  as  a  wife  and  as  a  parent  differ,  the  two  rights  of 
family  relationships  have  been  similarly  compared.29  At  a  minimum, 
these  holdings,  coupled  with  the  recent  Supreme  Court  decision  in 
Reed  v.  Reed,30  which  rendered  a  statutory  preference  of  males  over 
females  as  administrators  of  their  child's  estate  unconstitutional,  further 
indicate  a  potential  trend  toward  full  recognition  of  a  mother's  rights 
in  family  relationship  torts. 

24Miss.  Code  Ann.  §  399  (1956) .  For  the  text  of  this  statute,  see  note  21  supra. 
Although  the  wife's  right  of  action  was  not  an  issue  in  the  case,  the  Mississippi 
Supreme  Court  has  stated  that  "[m]edical  and  hospital  expenses  of  a  minor  are 
obligations  and  debts  of  the  father  [and]  where  the  father  has  incurred  or  paid 
them,  he  has  the  right  to  bring  a  separate  suit  for  them."  Lane  v.  Webb,  220  So.  2d 
281,  285    (Miss.  1969). 

25U.  S.  Const,  amend.  XIV,  §  1,  which  states  in  part: 

nor  shall  any  State  deprive  any  person  of  life,  liberty,  or  property,  without 

due  process  of  law;  nor  deny  to  any  person  within  its  jurisdiction  the  equal 

protection  of  the  laws. 
Although    application   of    the   equal   protection    argument   in    this   area   of    the   law 
is    somewhat   recent,    it    appears    to    have   been    first   raised    in    an    early    dissenting 
opinion.    See    Bernhardt    v.    Perry,    276    Mo.    612,    632,    208    S.W.    462,    467     (1918) 
(dissenting  opinion) . 

26Consortium  is  a  term  used  to  describe  the  right  and  legal  interest  of  a 
husband  and  wife  to  the  mutual  enjoyment  of  each  other's  companionship  and  aid, 
and  includes  the  husband's  right  to  services  of  his  wife.  Black's  Law  Dictionary  382 
(Rev.  4th  ed.  1968).  See  generally  Cox  v.  Cox,  183  So.  2d  921  (Miss.  1966)  ;  Luppman, 
The  Breakdown  Of  Consortium,  30  Colum.  L.  Rev.  651    (1930)  . 

27Umpleby  v.  Dorsey,  10  Ohio  Misc.  288,  227  N.E.2d  274    (1967) . 

zsRarczewski  v.  Baltimore  &  O.R.R.,  274  F.  Supp.  169  (N.D.  111.  1967)  (ap- 
plying Indiana  law)  ;  Owen  v.  Illinois  Baking  Corp.  260  F.  Supp.  820  (W.D. 
Mich.  1966,  noted  in  19  Ala.  L.  Rev.  551  (1967) ,  Contra,  Krohon  v.  Richardson- 
Merrill,  Inc.,  406  S.W.2d  166  (Tenn.  1966) ,  cert,  denied,  386  U.S.  970  (1967) ;  Sea- 
graves  v.  Legg,  147  W.  Va.  331,  127  S.E.2d  605  (1962) .  In  Owen,  after  discussing  the 
modern  social  advancement  of  women  in  the  marriage  relationship,  the  court 
stated,  "[T]o  grant  a  husband  the  right  to  sue  on  this  right  [loss  of  consortium] 
while  denying  the  wife  access  to  the  courts  in  the  assertion  of  this  same  right  is  too 
clearly  in  violation  of  the  Fourteenth  Amendment  equal  protection  guarantees  to 
require  citation  of  authority."  Id.  at  821. 

29Hayward  v.  Yost,  72  Idaho  415,  242  P.2d  971  (1952) ;  H.  Clark,  The  Law  Of 
Domestic  Relations  §  7.2,  at  261    (1968) . 

30404  U.S.  71    (1971),  noted  in  43  Miss.  L.J.  418    (1972). 


1973]  RECENT  DECISIONS  579 

In  the  instant  case,  after  determining  that  Mississippi  law  should 
be  applied,31  the  court  stated  that  the  father's  duty  to  support  did  not, 
in  itself,  make  him  the  sole  owner  of  the  parent's  cause  of  action.32  Con- 
sidering each  element  of  parental  damage  separately,  the  court  noted 
that  under  section  399  of  the  Mississippi  Code,  both  parents  were  equally 
entitled  to  the  earnings  and  services  of  their  child.  Therefore,  the  court 
concluded  that  the  mother  has  an  equal  parental  interest  in  her  child's 
earnings  and  services,  and  that  she  should  recover  one-half  of  these  dam- 
ages. The  court  then  stated  that  section  399  of  the  Mississippi  Code, 
which  also  provides  that  a  mother  and  father  are  equally  charged  with 
the  care  of  their  child,  did  not  alone  provide  a  basis  for  the  mother's 
claim  to  the  compensation  awarded  for  her  nursing  services.  The  court, 
however,  reasoned  that  section  399,  coupled  with  Mississippi  constitu- 
tional33 and  statutory  provisions34  emancipating  women  from  all  com- 

3iThe  court  first  determined  that  state  law  rather  than  federal  law  should  be 
applied  in  this  diversity  case.  See  Erie  R.R.  v.  Tompkins,  304  U.S.  64  (1938) . 
Appellees  had  argued  that  since  the  appellants  were  domiciled  as  a  family  in 
Indiana,  the  law  of  that  state  should  be  applied  in  the  instant  case  as  it  affects  family 
relationships  in  which  the  state  has  an  interest.  This  argument  was  advanced  by 
appellees  since  Ind.  Code  Ann.  §  2-217  (1968)  provides  that  only  a  father  .while 
living,  can  sue  for  parental  damages  in  child  injury  actions.  The  court  in  the  instant 
case  rejected  this  argument,  saying  that  Mitchell  v.  Craft,  211  So.  2d  509  (Miss.  1968) 
had  indicated  that  Mississippi  courts  would  look  to  all  equitable  factors  in  multistate 
tort  actions  to  determine  the  law  to  be  applied.  Here,  the  court  noted  that  the 
Indiana  policies  would  not  be  furthered  in  applying  their  law  in  Mississippi  courts 
and  further,  that  the  Indiana  statute  in  question  might  involve  a  difficult  14th 
amendment  constitutional  question.  Thus  the  court  concluded  that  in  view  of  these 
equitable  factors  and  the  fact  that  the  tort  had  been  committed  in  Mississippi,  the 
state  court  would  apply  Mississippi  law.  See  43  Miss.  L.J.  382  (1972)  for  a  discussion 
of  Mississippi  choice-of-law  decisions  in   multi -state  tort  suits. 

32ln  support  of  their  contention  that  the  father  had  the  sole  right  of  action, 
the  appellees  cited  a  number  of  Mississippi  divorce  decisions  holding  the  father 
"primarily"  liable  for  the  continued  support  of  his  children  after  his  divorce  or 
separation.  See  Mclnnis  v.  Mclnnis,  227  So.  2d  116  (Miss.  1969);  Rasch  v.  Rasch, 
250  Miss.  885,  168  So.  2d  738  (1964);  Pass  v.  Pass,  238  Miss.  499,  118  So.  2d  769 
(1960) .  In  examining  these  decisions,  the  court  concluded  that  even  though  the 
cases  labeled  the  father's  duty  as  "primary"  in  a  divorce  or  separation  setting, 
these  decisions  did  not  directly  support  nor  require  the  conclusion  that  a  father 
was  the  sole  owner  of  the  parent's  cause  of  action  in  a  child  injury  suit. 

33Miss.  Const,  art.  4,  §  94  which  provides  in  part,  "The  legislature  shall  never 
create  by  law  any  distinction  between  the  rights  of  men  and  women  to  acquire,  own, 
enjoy  and  dispose  of  property.  .  .  .  Married  women  are  hereby  fully  emancipated 
from  all  disabilities  on  account  of  coverture."  See  Austin  v.  Austin,  136  Miss.  61,  71, 
100  So.  591,  592  (1924) ,  in  which  this  constitutional  provision  was  interpreted  as 
having  been  "enacted  for  the  purpose  of  striking  down  the  inequalities  existing 
between  husband  and  wife.  The  intent  was  to  put  the  wife  on  the  exact  equality 
with  her  husband— to  emancipate  her  from  the  common  law  slavery  of  her  husband." 

34Miss.  Code  Ann.  §  451  (Supp.  1972).  See  note  11  supra  for  text  of  this 
statute. 


580  MISSISSIPPI  LAW  JOURNAL  [vol.  44 

mon  law  disabilities,  indicates  a  strong  state  policy  that  a  woman's 
rights  are  not  to  be  reduced  by  marriage.35  The  court  further  noted  that 
to  allow  the  mother's  separate  claim  would  be  consistent  with  the  Mis- 
sissippi rule  that  marriage  alone  does  not  impute  the  negligence  of  a 
husband  to  his  wife.36  The  court  concluded  that  since  extra  nursing 
services  were  not  a  part  of  a  woman's  normal  family  duties,37  and  there- 
fore not  a  part  of  the  consortium  of  the  husband,  she  should  be  allowed 
to  separately  recover  full  compensation  for  the  value  of  the  services.38 

Under  the  common  law  theory  of  parental  recovery  in  child  injury 
suits,  the  courts  have  been  generally  reluctant  to  recognize  a  mother's 
claim  since  this  would  require  a  finding  of  an  equal  duty  of  support  in 
the  mother.  The  instant  case,  however,  offers  a  favorable  alternative 
approach.  In  recognizing  the  wife's  parental  right  of  recovery,  the  court 
based  its  decision  on  equitable  principles  of  married  women's  equality 
rather  than  primary  and  secondary  parent-child  relationships.  Thus,  the 
court  was  able  to  allow  the  mother  to  recover  while  leaving  undisturbed 
the  father's  primary  duty  to  support.  By  approaching  the  problem  of  a 
mother's  right  to  damages  on  an  individual,  rather  than  family  relation- 
ship basis,  the  logic  of  the  instant  decision  appears  to  produce  additional 
advantages.  It  enables  the  mother  to  recover,  in  addition  to  an  equal 
share  of  the  loss  of  earnings  and  services,  only  those  damages  personally 
identifiable  to  her.  Thus,  a  potential  procedural  problem  of  recognizing 
an  equal  right  of  action  in  both  parents  for  all  collateral  damages  is 
avoided.  The  approach  taken  by  the  court  in  the  instant  case  can  be 
adopted  in  jurisdictions  that  have  recognized  the  father's  primary  duty 
to  support  children  in  divorce  and  separation  cases  and  still  produce 
equitable  recovery  in  proper  situations  without  altering  the  father's  duty 

35As  further  evidence  of  this  view  of  Mississippi  policy,  the  court  cited  Cooke 
v.  Adams,  183  So.  2d  925  (Miss.  1966)  in  which  the  Mississippi  Supreme  Court  took 
judicial  notice  of  a  "clearly  discernible  nation-wide  trend,  of  both  state  and 
federal  legislation,  to  expand  rather  than  restrict  the  economic  and  personal 
emancipation  of  women.  .  .  ."  Id.  at  926-27. 

MSee,  e.g.,  Woodward  v.  St.  Louis-San  Fran.  Ry.,  418  F.  2d  1305  (5th  Cir.  1969); 
Marr  v.  Nichols,  208  So.  2d  770  (Miss.  1968) .  This  is  the  generally  accepted  rule  in  the 
majority  of  jurisdictions  today.  See  F.  Harper  &  F.  James,  supra  note  7,  §  8.9,  at 
640  (1956) ;  Restatement  (Second)  of  Torts  §  494 A  (1972) ;  Harbison,  Family 
Responsibility  in  Tort,  9  Vand.  L.  Rev.  809  (1956) ;  Symposium  on  the  Law  of 
Domestic  Relation  in  Oklahoma,  14  Okla.  L.  Rev.  279,  327-29  (1961). 

37The  court  described  the  very  extensive  daily  nursing  care  that  the  child,  now  a 
paraplegic,  required  from  his  mother.  The  child  is  incapable  of  performing  any 
acts  of  his  own,  must  be  tended  at  intervals  throughout  the  night,  and  constantly 
watched  and  cared  for  by  his  mother. 

38 As  to  the  collateral  hospital  and  medical  expenses,  the  court  concluded  that 
since  the  record  did  not  indicate  which  parent  had  contracted  for  their  payment, 
and  since  the  wife  could  if  she  had  made  such  an  agreement  recover  these  losses, 
disposition  of  this  element  of  damages  could  not  be  propertly  determined.  Ac- 
cordingly, this  issue  was  remanded  to  the  district  court  for  the  collection  of 
additional  evidence. 


1973]  RECENT  DECISIONS  581 

to  his  family.  Finally,  this  theory  of  recovery  for  parental  expenses  in- 
curred by  the  married  woman  provides  an  equitable  and  just  rule  that 
will  help  restore  a  sense  of  direction  in  an  area  of  the  law  that  is  cur- 
rently muddled  with  conflicting  statutory,  common  law,  and  equitable 
principles.  Although  the  instant  decision  was  founded  on  Mississippi 
law  and  policy,  the  court's  individual  rights  approach  indicates  an  un- 
mistakable preoccupation  with  underlying  equal  protection  considera- 
tions. This  is  further  evidenced  by  the  court's  admission  that  denial  of 
the  wife's  claim  would  raise  significant  constitutional  questions  in  light 
of  the  Supreme  Court's  recent  decision  in  Reed  v.  Reed.™  This  language 
is  significant  because  it  represents  the  first  judicial  reference  to  the  14th 
amendment  as  a  basis  for  a  wife's  parental  action  in  a  child  injury  suit. 
Thus,  the  instant  decision  will  add  new  impetus  to  the  current  judicial 
trend  of  utilizing  the  federal  constitution  to  guarantee  equal  recognition 
of  a  married  woman's  legal  interests  in  the  family  relationship. 

William  L.  Colbert,  Jr. 


39404  U.S.  71  (1971) .  Although  the  court  found  it  unnecessary  to  "squarely 
face"  this  constitutional  issue  in  the  instant  case  since  the  wife's  claims  could  be 
recognized  using  Mississippi  law,  the  court  declared  that  its  disposition  of  the  case 
was  made  with  an  "awareness  that  a  different  result  would  raise  significant  con- 
stitutional questions."  Wright  v.  Standard  Oil  Co.,  470  F.2d  1280  (5th  Cir. 
1972) .  Also,  in  determining  the  conflict  of  laws  issue  in  the  instant  case,  the 
court  noted  that  the  Indiana  statute  which  gave  the  father  a  preferential  right  to 
sue  might  "contravene  the  equal  protection  clause  of  the  14th  amendment  under 
the  rationale  of  Reed  v.  Reed."  Id.  at  9. 


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